Welcome to 2026: Medical marijuana is legal in 42 states and the District of Columbia. An additional five states allow the sales of high CBD/low THC products. Adult-use marijuana is legal in 24 states. And on December 18, 2025, President Donald Trump signed an Executive Order directing the Attorney General to reschedule marijuana from a Schedule I to Schedule III substance under the Controlled Substances Act. Cannabis seems positioned to have a top shelf year. Or will it?
The United States government was closed for a record 35 days until the enactment of HR 5371, the 2025 stopgap budget bill. Tucked into the budget which was passed in November was the so-called “hemp ban.” While referred to as a ban, this is not so much a ban as it is a radically new classification system for the Cannabis sativa L. plant, and one which will have profound implications for the entire cannabis industry. This provision repeals the definition of “hemp” found in the 2018 Farm Bill and replaces it with two new categories of hemp, “industrial hemp” and “hemp-derived cannabinoid products.”
To fully understand the implications of the “hemp ban” a quick science lesson is necessary. Marijuana and industrial hemp are the same species of plant, Cannabis sativa L. However, marijuana and industrial hemp plants are two different varieties of the cannabis plant. Think about the common pepper plant, capsicum anuuum. This species includes a wide range of varieties like sweet bell peppers, but also hotter varieties like jalapenos and cayenne peppers. Like pepper plants, the cannabis plant has been domesticated and bred into different varieties.
Hemp is traditionally grown for its stalks which are used to make fiber and textiles. It is bred to be tall and slender to maximize the fiber yield. On the other hand, marijuana plants are bred to maximize THC compounds contained in the flowers of the female plant. They tend to be bushier and less woody than hemp plants as the flower is the economically important part of the plant.
Though hemp traditionally is not grown for its flowers, female hemp plants do produce flowers. All cannabis flowers (both hemp and marijuana strains) contain varying amounts of cannabinoids including THCa (the precursor to THC) as well as CBDa (the precursor to CBD. To activate its medicinal or psychoactive effects THCa must be heated, converting it into psychoactive delta-9 THC. Marijuana flowers are high in THC compounds and low in CBD compounds. Hemp flowers are the opposite, but still contain a trace amount of THCa.
The 2018 Farm Bill defined “hemp” as any part of the cannabis plant or its derivatives containing no more than 0.3% (delta-9 THC) on a dry-weight basis. Any cannabis product containing more was deemed marijuana, which remains Federally illegal and tightly regulated in the states which permit the sale of medical and/or adult use marijuana.
While the 2018 Farm Bill limited the amount of delta-9 THC which hemp can legally contain, it did not address or put limits on THCa content, a very important oversight on the part of legislators. That gap matters because, when my injury was caused by exposure to intoxicating products sold as hemp, the source often traces back to this loophole. The THCa found in hemp flowers can be isolated, aggregated, and processed into new synthetic products. These synthetics are chemically similar to delta-9 THC and will get you high. Examples include delta-8 THC, delta-10 THC, and HHC. Because the Farm Bill definition of hemp only limited the delta-9 THC content of hemp products, these intoxicating products have been legally marketed and sold as “hemp” since 2018.
The recently passed “hemp ban” closed this loophole. The 2018 Farm Bill definition of hemp was repealed and replaced with “industrial hemp” and “hemp- derived cannabinoid product.” “Industrial hemp” is defined as the parts of the cannabis plant containing less than .3% delta 9 THC and THCa. This nuance maintains the legal status of hemp grown for textiles and food.
The new term “hemp-derived cannabinoid product” is defined as any intermediate or final product derived from hemp (other than industrial hemp) that:
- contains cannabinoids in any form; and
- Is intended for human or animal use through any means of application or administration such as inhalation, ingestion, or topical application.
The law further clarifies what a “hemp-derived cannabinoid product” is:
- Viable seeds from a Cannabis sativa plant containing greater than .3% of THCa or THC in any form); or
- Cannabinoids that are not capable of being naturally produced by a Cannabis sativa plant and were synthesized or manufactured outside the plant.
The second provision effectively outlaws the sale of intoxicating delta-8, delta-10, HHC and other THC derived synthetics effective November 12, 2026. This is a huge win for public health. Synthetic THC products are readily available at vape shops and on-line. They are a popular way to get high, especially among teens and younger people. No medical card is needed at vape shops. The age of customers is rarely verified. Products such as gummies and candies are designed to appeal to kids and marketed in a way that makes Joe Camel look family friendly. Copycat cartoon characters are featured on colorful flashy packaging resembling popular snacks and candy. Many featured graffiti fonts.
The FDA and FTC sent warning letters to many of these companies. One was sent to Mary Jane’s Bakery Company in July 2024 referencing 300 instances of reported adverse events—most commonly children mistakenly consuming delta-8 products. The FTC warned the bakery to stop selling delta-8 products resembling Jolly Ranchers, Sour Patch Kids, and gummy bears.
Furthermore, there are no quality or safety controls for synthetic THC products. The chemicals used to manufacture synthetics are not required to be disclosed on the packaging, which can result in allergic reactions or even poisoning and raises serious concerns about the legal rights of medical consumers who rely on accurate labeling and safe products. That is not the case for state legal marijuana products, which are subject to rigid state-imposed testing requirements to ensure the products sold contain exactly the amounts of THC represented and that there is no adulteration. Recalls are issued when products fail purity testing.
While the ban of synthetic THC is welcomed, the hemp ban may have the unintended consequence of banning many CBD products currently are sold over-the-counter and which provide meaningful pain relief without intoxicating effects.
The 2018 Farm Bill permitted CBD to be sold as “hemp” so long as it contained less than .3% delta-9 THC.
Under the new classification system, CBD (a non-psychoactive cannabinoid) is a “hemp-derived cannabinoid product” required to contain less than .3% delta-9 THC and THCa to be legally sold. The law does not distinguish between topical or ingested CBD products, and, as a result, many non-intoxicating CBD products now exceed the permitted THCa and THC content.
The amount of THCa found in CBD products depends on the extent of the processing. CBD is sold in three formulations: full spectrum, broad spectrum and isolate. Full spectrum CBD products contain trace but measurable THCa and other naturally occurring cannabinoids. Evidence suggests that the presence of natural trace THCa and other cannabinoids in CBD products provides optimal pain relief (“ the entourage effect”). Broad spectrum CBD is processed to remove the THCa only, while isolate CBD is further processed to remove any other cannabinoids to be pure CBD. Under the new law, full spectrum CBD will likely be considered “marijuana” and illegal to sell. This is compounded by the language contained in the new law indicating that a “container” of “final hemp-derived cannabinoid products” cannot legally contain more than .4 mg combined of any THC. “Container” is defined as the innermost wrapping in which the final hemp-derived product is enclosed for retail sale to customers such as a jar, bottle, bag, box, packet, can, carton or cartridge.
The future of CBD remains to be seen. The statute directs the United States Secretary of the Department of Health & Human Services “shall publish” the following within 90 days of the enactment of this Act:
(A) a list of all cannabinoids known to FDA to be capable of being naturally produced by a Cannabis sativa L. plant, as reflected in peer reviewed literature;
(B) a list of all tetrahydrocannabinol class cannabinoids known to the agency to be naturally occurring in the plant;
(C) a list of all other know cannabinoids with similar effects to, or marketed to have similar effects to, tetrahydrocannabinol class cannabinoids; and
(D) additional information and specificity about the term “container” as defined in paragraph (3)(C).
The Act was enacted on November 11, 2025, making these lists due soon, on February 9, 2026. We shall see if HHS and FDA take this directive seriously, and provide more guidance regarding the legal status of CBD.
I end with an interesting exclusion buried in the statute which indicates that the term “hemp-derived cannabinoid product” does not include a drug that is the subject of an application approved under subsection (c) or (j) of section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355).” This presumably refers to two synthetic cannabinoid products manufactured by Big Pharma: Epidiolex (synthetic CBD) and Marinol (synthetic THC). One must wonder if the proposed rescheduling of marijuana to Schedule III is designed to be benefit the marijuana industry, or rather a gift to big pharma, a pretext to shift the manufacturing of CBD and THC products to big pharma. That answer should become clear in the next few months as the legal status of CBD is clarified by the FDA. If CBD is rendered a controlled substance only allowed to be sold by big pharma, it’s possible that they might try to treat marijuana the same way.