September 1, 2025
As Congress inches toward a final 2025 Farm Bill, the most contentious cannabis issue in Washington isn’t state-legal marijuana—it’s intoxicating hemp. Lawmakers, regulators, courts, and state officials are grappling with Delta-8 THC, high-THCA flower, and other hemp-derived cannabinoids that have surged into the market since 2018. For brands, distributors, and retailers, the next few months could reshape business models, compliance programs, and product portfolios.
Below, we break down where federal policy stands, how court rulings impact risk, the expanding patchwork of state crackdowns, and the immediate compliance steps to take now—plus a practical product-by-product risk matrix and a watchlist for Farm Bill conference negotiations.
Senate appropriations pulled back on a broad hemp THC restriction. After negotiations in late July 2025, Senate appropriators stripped hemp language from the FY2026 Agriculture–FDA spending bill that would have tightened the federal definition of hemp and limited THC content in consumables. See coverage in Politico and Forbes:
House appropriators moved in the opposite direction, advancing FY2026 language to adopt a total THC standard and restrict cannabinoids produced via synthetic/manufactured conversion. See summaries and analysis:
Foley Hoag recap: https://foleyhoag.com/news-and-insights/blogs/cannabis-and-the-law/2025/june/house-appropriations-committee-takes-aim-at-intoxicating-hemp/
CRS brief on hemp restrictions in appropriations: https://www.congress.gov/crs-product/IN12565
House Farm Bill proposals have also sought to narrow hemp’s definition to naturally occurring, non-intoxicating cannabinoids, targeting Delta-8/Delta-10 and other isomers produced through conversion. See the Mary Miller amendment text (HR 8467 markup):
Amendment 35 PDF: https://docs.house.gov/meetings/AG/AG00/20240523/117371/BILLS-118-HR8467-M001211-Amdt-35.pdf
Senate Agriculture Farm Bill work in prior drafts signaled interest in closing the THCA loophole and addressing synthesized isomers, but with less consensus on how far to go. Trade coverage:
The Congressional Research Service highlights “divergent opinions” and policy options, including redefining hemp to a total THC basis and clarifying the status of manufactured cannabinoids:
CRS report discussion: https://www.marijuanamoment.net/congressional-researchers-detail-divergent-opinions-on-hemp-as-lawmakers-debate-thc-ban/
Bottom line: The House is pressing for a tighter federal definition; the Senate is split, with appropriators dropping restrictions in the near-term spending bill. The Farm Bill conference is the real arena to watch.
If House-side proposals or a negotiated Farm Bill compromise advance, expect movement in these areas:
Redefining legal hemp to include the sum of delta-9 THC plus THCA (using the 0.877 decarboxylation factor) would align federal law with many state standards and USDA crop testing. See 7 CFR Part 990 (USDA’s Domestic Hemp Production Program and “acceptable hemp THC level”):
eCFR: https://www.ecfr.gov/current/title-7/subtitle-B/chapter-IX/part-990
Practically, high-THCA flower that currently “passes” under a delta-9-only reading would fail under total THC, reshaping flower and pre-roll markets.
Ninth Circuit (AK Futures v. Boyd Street Distro, 2022): The court held that hemp-derived Delta-8 products can qualify as legal “hemp” under the 2018 Farm Bill so long as delta-9 THC remains ≤0.3% by dry weight. That decision catalyzed much of the present market.
Opinion PDF: https://cdn.ca9.uscourts.gov/datastore/opinions/2022/05/19/21-56133.pdf
Fourth Circuit (Virginia “total THC” case, 2025): The court affirmed denial of a preliminary injunction and concluded that the 2018 Farm Bill does not preempt stricter state limits on hemp products (including total THC caps and per-serving milligram limits). Translation: states can be stricter than federal law.
DEA’s position on THCA: DEA has stated that THCA does not meet the hemp definition because it converts to delta-9 THC upon decarboxylation—functionally a total THC view. While not binding on courts, it informs enforcement risk and legislative drafting.
Takeaway: Ninth Circuit precedent supports hemp-derived Delta-8 under the 2018 Farm Bill. But the Fourth Circuit confirms states may impose stricter standards. Businesses must plan for both federal reform and state-by-state divergence.
Even before Congress acts, many states have tightened rules on intoxicating hemp:
Virginia: Enforced a total THC approach with per-serving limits; the Fourth Circuit upheld the framework’s non-preemption.
State enforcement: https://www.vdacs.virginia.gov/food-hemp-product-enforcement.shtml
Iowa: 2024 law added strict mg-per-serving and per-package limits, prohibited flower for inhalation, and banned certain synthetics subject to rulemaking.
Tennessee: 2025 overhaul moved consumable hemp oversight to the Alcoholic Beverage Commission and created new licensing and on-premise rules for hemp-derived cannabinoid products.
Overview: https://www.dickinson-wright.com/news-alerts/hemp-derived-cannabinoids-under-abc-authority
Florida: 2024 enforcement-focused updates increased penalties for child-appealing hemp extract products and tightened event and retail compliance.
Bill summary: https://www.flsenate.gov/Committees/BillSummaries/2024/html/3404
New York: OCM has used emergency rulemaking and Part 114 to tighten labeling, potency, and retail controls over cannabinoid hemp.
OCM resource: https://cannabis.ny.gov/part-114-emergency-justification
Texas: Ongoing litigation and legislative scrutiny continue to target Delta-8 and intoxicating hemp products, with proposals to raise age limits and restrict synthetics.
Background example: https://vicentellp.com/insights/ongoing-delta-8-thc-legal-battle-moves-to-the-texas-supreme-court/
State trendline: More jurisdictions are adopting total THC, mg caps, 21+ age gating, and labeling/packaging rules while restricting synthesized isomers and inhalable flower.
FDA/FTC continue coordinated actions against youth-appealing packaging and copycat foods, and they warn broadly about the risks of Delta-8 exposure in children.
2024 FTC/FDA press: https://www.ftc.gov/news-events/news/press-releases/2024/07/ftc-fda-send-second-set-cease-desist-letters-companies-selling-products-containing-delta-8-thc
Civil litigation is growing: Plaintiffs target potency variances, delta-9 exceedances, misleading labels, and adverse events.
Litigation snapshot: https://core.verisk.com/Insights/Emerging-Issues/Articles/2025/January/Week-2/Mislabeling-of-Delta-8-Products
Manufacturer class action risks: https://www.duanemorris.com/alerts/delta8_product_manufacturers_should_be_aware_consumer_class_action_risks_0424.html
Implication: Even if federal reform stalls, enforcement and civil liability risks are rising—particularly for edibles, vapes, and products marketed with kid-appealing branding or lax testing.
Implement these steps now to mitigate regulatory and litigation exposure:
Document origin and chain-of-custody: Maintain farm and extraction origin records, batch logs, transport manifests, and supplier attestations confirming hemp-derived, not marijuana-derived, inputs.
Test for total THC (not just delta-9): Use validated methods that capture THCA via decarboxylation. Ensure labs can explain their LOQ/LLOD, measurement uncertainty, and 0.877 conversion. Anticipate shifts to DEA-registered labs for product testing if federal or state rules require it.
USDA context on lab requirements and timeline: https://www.ams.usda.gov/rules-regulations/hemp/information-laboratories and https://www.ams.usda.gov/rules-regulations/hemp/dea-laboratories
Age-gate at 21+: Adopt POS ID verification and e-commerce third-party age checks. Block sales in states with explicit bans or additional licensing.
Packaging and labeling:
Use child-resistant, non-appealing designs—avoid cartoon imagery, candy lookalikes, and brand mimicry.
Add a QR code linked to batch COA, with cannabinoid profile, contaminants panel, test lab identity, date, and total THC.
Include warnings (impairment, not for children or pregnant/breastfeeding individuals, delayed onset for edibles) and serving size/potency per serving and per package.
Retailer and budtender training: Cover age restrictions, dosage, impairment, delayed onset, compliance scanning of COAs/labels, and refusal of questionable product.
Adverse event tracking and product recalls: Implement SOPs to capture consumer complaints, adverse events, and rapid recall procedures with batch-level traceability.
Insurance and contracts: Revisit product liability coverage, vendor indemnities, and COA representations/warranties with suppliers and retailers.
Geo-compliance: Update your online checkout and distribution to block shipments into restricted states or to require state-specific packaging/labeling.
Watch your marketing claims: Avoid disease or drug-like claims; follow FTC advertising standards for substantiation.
Delta-8 vapes and disposables: High risk
Why: Targets of state bans, synthetic/manufactured conversion scrutiny, youth-appeal concerns, and FDA/FTC actions. Vulnerable to federal redefinition and civil suits over labeling/potency.
High-THCA “hemp” flower and pre-rolls: High risk
Why: A federal total THC standard would classify many SKUs as unlawful hemp. Multiple states already treat THCA as delta-9 via decarboxylation.
THC beverages (hemp-derived): Medium–High risk
Why: Potency-per-serving caps proliferate; alcohol regulators are increasingly involved; state “total THC” and mg/package limits hit formulations hard.
Gummies and edibles (Delta-8/Delta-9 from hemp): Medium–High risk
Why: FTC/FDA scrutiny of child appeal, serving sizes, and adverse events; frequent target of class actions over potency and labeling.
HHC/THC-O/other novel isomers: High risk
Why: Often squarely within “synthesized/manufactured” crosshairs; some courts and agencies treat as controlled.
CBD-only tinctures and topicals (non-intoxicating): Low–Medium risk
Why: Lower priority if THC is non-detect or de minimis; avoid drug claims and ensure contaminant testing. Risk increases if trace THC pushes total THC over limits or if marketing drifts into disease claims.
Expect these issues to dominate negotiations and any compromise language:
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This article is for informational purposes only and does not constitute legal advice. For tailored compliance strategies, license planning, and regulatory tracking across jurisdictions, visit https://cannabisregulations.ai/ and connect with our team. Stay ahead of the next Farm Bill and the evolving intoxicating hemp rules with real-time updates and expert tools.
