Congress Bans Delta-8 And THCA Under New Hemp Law

H.R. 5371 reflects the fragmented state of U.S. cannabis policy. Even as federal agencies consider rescheduling marijuana, Congress just made it harder to sell, and arguably, to use, hemp products that resemble cannabis.

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Congress just rewrote the definition of hemp, and the ripple effects could reshape drug testing policies, cannabis compliance, and workplace safety.

Signed into law in November 2025 as part of a broader government funding package, H.R. 5371 closes what lawmakers call a loophole in the 2018 Farm Bill. That earlier law legalized hemp containing no more than 0.3% delta-9 tetrahydrocannabinol (THC), the primary psychoactive component of cannabis. But it left open the door to a booming market of hemp-derived cannabinoids, like delta-8 THC, THCA, and others, that produce similar intoxicating effects without exceeding the delta-9 threshold.

H.R. 5371 shuts that door. Buried about halfway through the 161-page appropriations package, Section 781 quietly upends the legal status quo surrounding hemp. It:

• Redefines “hemp” to include a total THC limit of 0.3%, calculated as the sum of delta-9 THC and its precursor, tetrahydrocannabinolic acid (THCA).
• Prohibits cannabinoids “synthesized or manufactured outside the plant,” targeting lab-created intoxicants like delta-8 and delta-10.
• Caps the allowable THC content at 0.4 milligrams per container, including THCA and any cannabinoids deemed to have similar intoxicating effects.
• Reverses the DEA’s controversial guidance on cannabis seeds, which had allowed high-THC cannabis to be classified as “hemp” if the seeds themselves contained less than 0.3% delta-9 THC.

The law takes effect in November 2026, giving businesses one year to adjust. But its implications are immediate, especially for employers navigating the blurred lines between legal hemp, regulated cannabis, and workplace safety.

The End of Intoxicating Hemp Products?

H.R. 5371 delivers a fatal blow to the controversial category of intoxicating hemp products that gained popularity in the wake of the 2018 Farm Bill. That includes products like THCA flower, delta-8 vapes, delta-10 gummies, and HHC edibles. These items were often marketed as legal alternatives to marijuana, particularly in states that maintained prohibition or lacked regulated cannabis markets.

Under the new law, most of these products will be considered federally illegal, either for exceeding the new THC cap, for being chemically synthesized, or for containing cannabinoids with “effects similar to” THC. That final phrase will be interpreted by the Secretary of Health and Human Services, who is tasked with publishing an official list of covered cannabinoids.

Until that list is published, businesses and consumers alike face uncertainty about which cannabinoids might be swept up in the ban.

Employer Implications: More Clarity, Less Wiggle Room

While the law doesn’t directly regulate workplace drug testing, it clears up years of ambiguity that complicated employer enforcement.

Workers who failed a THC test, especially via urine analysis, could previously claim they had used legal hemp, not marijuana, and cite delta-8 or THCA flower as the source. These arguments gained traction because most tests detect THC metabolites generically, without identifying the specific cannabinoid or its origin.

By narrowing the federal definition of hemp, H.R. 5371 closes off those excuses. Products that once skirted THC limits will now fall squarely under the umbrella of controlled substances, leaving employees with fewer defenses after a positive test.

Employers using oral fluid testing, which can detect a broader range of cannabinoids in shorter windows, may see even cleaner results and firmer footing for policy enforcement. This is particularly relevant as more employers adopt oral fluid as a supplement or alternative to traditional urine testing.

DOT-Regulated Employers and Safety-Sensitive Roles

For employers regulated by the Department of Transportation, H.R. 5371 reinforces existing restrictions.

The DOT already prohibits marijuana use among safety-sensitive employees, regardless of state legalization. But some workers attempted to sidestep those rules by using hemp-based intoxicants, arguing they were technically legal. The new law eliminates that gray area by aligning federal definitions more closely with DOT intent, tightening the circle around what counts as an impermissible substance.

While the law doesn’t amend DOT drug testing protocols, it strengthens an employer’s position when taking adverse action. And as enforcement continues to evolve, DOT-regulated employers should stay alert for additional guidance from the agency or its operating administrations.

Off-Duty Use, Safety Risks, and State Law Conflict

Many states protect lawful off-duty conduct, including legal cannabis use. But federal law, and federal contractors, aren’t bound by those protections. H.R. 5371 limits access to intoxicating hemp products, potentially reducing off-duty use that could spill into the workplace.

That’s particularly important in safety-sensitive industries, where impairment can carry catastrophic consequences.

At the same time, the new law sets up a potential clash with state hemp laws. Some states, like Minnesota and Kentucky, explicitly allow delta-8 or THCA products. Businesses operating across multiple jurisdictions will need to reconcile those state permissions with looming federal restrictions, especially as enforcement unfolds.

Litigation is also likely. Industry groups are already signaling intent to challenge the law’s scope, definitions, and potential chilling effect on non-intoxicating products like full-spectrum CBD, which may contain trace THC but are unlikely to impair users.

Next Steps for Employers

Although the law doesn’t take effect until November 2026, employers should begin preparing now. Start by reviewing and updating drug-free workplace policies to address synthetic cannabinoids and clearly articulate the consequences for using substances that are now, or soon will be, federally illegal. It’s also worth educating HR teams and supervisors on how the new definition of hemp may impact testing protocols, disciplinary measures, and documentation requirements.

In the meantime, stay alert for upcoming federal guidance. The Secretary of Health and Human Services must publish three critical lists that will shape employer policies moving forward:

1. Cannabinoids that occur naturally in hemp.
2. Cannabinoids that are synthesized or manufactured outside the plant.
3. Cannabinoids that have “effects on the human body similar to” THC.

These lists will help clarify which substances fall under the new ban and inform how employers respond to workplace use and positive drug tests involving these cannabinoids.

A Shifting Cannabis Landscape

H.R. 5371 reflects the fragmented state of U.S. cannabis policy. Even as federal agencies consider rescheduling marijuana, Congress just made it harder to sell, and arguably, to use, hemp products that resemble cannabis.

For employers, the upside is clarity. But it comes with a new compliance burden and a need to rethink policies in light of a dramatically narrowed definition of legal hemp.

In an era where workplace safety, off-duty conduct, and cannabinoid science continue to collide, employers would be wise to stay one step ahead.