Is Hemp, THCA, and Delta-8 Legal? The 2026 Federal Rules

The 2018 Farm Bill removed hemp from the Controlled Substances Act's definition of marijuana. It defined hemp as the cannabis plant and its derivatives, extracts, cannabinoids, isomers, acids, and salts with a delta-9 THC concentration of not more than 0.3 percent on a dry weight basis. Anything over that line stayed marijuana. Congress also preserved the FDA's authority over hemp-derived products.

Because the statute named only delta-9 THC, some read it to mean that products with 0.3% delta-9 THC or less were legal hemp even if they contained significant amounts of other intoxicating compounds. The Congressional Research Service notes this became known as the "farm bill loophole."

THCA (tetrahydrocannabinolic acid) is the non-intoxicating acid form of THC in the raw plant. Heat, as in smoking or vaporizing, converts THCA into delta-9 THC. The USDA's hemp production rules already accounted for that at the farm level: crop samples are measured as total THC, calculated as delta-9 THC + (0.877 × THCA), and must come in at 0.3% or less.

The new federal definition writes total THC into the statute itself: hemp is now cannabis with a total THC concentration (including THCA) of not more than 0.3 percent on a dry weight basis. Once that provision takes effect, flower that is only "hemp" because its delta-9 THC is low, while its THCA is high, no longer fits the definition.

Delta-8 THC is a psychoactive cannabinoid that occurs naturally in cannabis but not in significant amounts. The FDA says concentrated delta-8 is typically manufactured by chemically converting hemp-derived CBD, a process that can leave harmful by-products, and that delta-8 products have not been evaluated or approved by the FDA for safe use. It has intoxicating effects similar to delta-9 THC, and NIDA notes that eating large amounts of delta-8 products has led to medical emergencies.

Under P.L. 119-37, hemp-derived cannabinoid products are excluded from hemp if they contain cannabinoids that are capable of being naturally produced by the plant but were synthesized or manufactured outside the plant, or if a final product holds more than 0.4 mg of total THC and similar cannabinoids per container. For usage and safety data, see our delta-8 THC statistics.

P.L. 119-37 was enacted on November 12, 2025. As summarized by the Congressional Research Service, the new definition excludes from hemp:

• viable seeds above 0.3% total THC (including THCA);
• hemp-derived cannabinoid products containing cannabinoids that are not capable of being naturally produced by the plant;
• products with cannabinoids capable of being naturally produced but synthesized or manufactured outside the plant;
• intermediate products with more than 0.3% combined total THC and similar cannabinoids; and
• final products with more than 0.4 mg combined total THC and similar cannabinoids per container.

Products excluded this way are to be regulated as marijuana under the Controlled Substances Act once the provisions take effect. A September 2026 continuing resolution (P.L. 119-103) delayed most of the definition to December 11, 2026; the exclusion of cannabinoids not capable of being naturally produced is set to take effect November 12, 2026. The law also told the FDA to publish lists of naturally occurring cannabinoids within 90 days; as of September 28, 2026, CRS reports those lists had not been published.

Federal hemp policy is not settled. CRS notes introduced bills that would delay the new definition by two more years, repeal it, raise the THC limit, or defer to state definitions. States also set their own rules, and CRS reports some states have already altered or aligned their laws with the new federal definition. Check your state's current law before buying or traveling with any hemp-derived THC product; our state law pages cover marijuana status by state, and federal status covers the rescheduling order.