Continuing Resolution Introduces Major Changes to Federal Regulation of Hemp-Derived Products

On November 12, 2025, as part of the Continuing Resolution and Appropriations Package (H.R. 5371) (CR), Congress enacted significant changes related to the regulation of hemp-derived products that significantly alter the current regulatory landscape, including for cannabidiol (CBD) products derived from hemp. Section 781 of the CR creates the most significant changes to the regulation of hemp since the 2018 Farm Bill.

2018 Farm Bill and Recent Changes

As we have previously written, the 2018 Farm Bill¹ made significant changes to the legal status of hemp and its derivatives, including CBD, by legalizing the cultivation and sale of “hemp” defined as, “[T]he plant Cannabis sativa L. and any part of that plant … with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis.” The law also amended the definition of marijuana in the Controlled Substances Act (CSA) to exclude hemp and its derivatives from being defined as a controlled substance and preserved the U.S. Food and Drug Administration’s (FDA) authority to regulate products containing CBD derived from hemp and other products containing hemp or hemp-derived compounds.² This distinction between the CSA and FDA’s authority is important — after passage of the 2018 Farm Bill, a company’s CBD product could be in compliance with the CSA while simultaneously out of compliance with the Federal Food, Drug, and Cosmetic Act (FD&C Act).

In response to the 2018 Farm Bill, FDA maintained the position that it was unlawful to market foods or dietary supplements containing CBD due to the drug preclusion provisions of the FD&C Act. Although FDA could issue a regulation allowing the use of a pharmaceutical ingredient in a food or dietary supplement, in 2023, FDA concluded that a new regulatory pathway for hemp-derived CBD products (necessitating Congressional action) was necessary because the existing FDA regulatory pathways for food and dietary supplements were not appropriate for CBD products due to various safety concerns.³ FDA maintained its approach to pursuing compliance and enforcement actions targeted at companies marketing CBD and other cannabis-derived products that, in the agency’s view, pose a threat to public health or are marketed to children.

Changes Made by the CR

Under Section 781 of the CR, which takes effect on November 12, 2026, hemp products will be defined by the total THC content in the product instead of solely the delta-9 THC content in the product. The total THC content includes Delta 9 THC, tetrahydrocannabinol acid (THCA), and “any other cannabinoids that have similar effects (or are marketed to have similar effects) on humans or animals as [THC]” as designated by the Secretary of the U.S. Department of Health and Human Services.

Additionally, Section 781 will require that any final hemp products intended for human or animal use through ingestion, inhalation, or topical use must contain no more than 0.4 mg of total THC per container. The CR defines “container” as the “innermost wrapping, packaging, or vessel in direct contract with a final hemp-derived cannabinoid product in which the final hemp-derived cannabinoid product is enclosed for retail sale to consumers, such as a jar, bottle, bag, box, can, carton, or cartridge.” A practical consequence is that companies will be unable to lawfully increase the size of the hemp-derived CBD products above this threshold, regardless of consumer preferences.

For intermediate hemp products, they must contain no more than 0.3% total THC on a dry-weight basis after decarboxylation. An intermediate hemp product is defined as a hemp product that is (1) not yet in the final form or preparation marketed or intended to be used or consumed by a human or animal or (2) is a powder, liquid, tablet, oil, or other product form which is intended or marketed to be mixed, dissolved, formulated, or otherwise added to or prepared with or into any substances prior to administration or consumption.

The CR also now excludes any cannabinoid substance that is not naturally produced by the cannabis plant or is synthesized outside of the plant from being defined as a hemp product. Only products derived from Cannabis sativa L. and any part of the plant will be defined as hemp. Under the CR, products that contain synthetic cannabinoids will now be regulated as controlled substances under federal law.

The CR calls on FDA, in consultation with other relevant federal agencies, to publish within 90 days of the passage of the CR:

• A list of all cannabinoids known to FDA to be capable of being naturally produced by a Cannabis sativa L. plant as reflected in the peer literature
• A list of all THC-class cannabinoids known to the agency to be naturally occurring in the plant
• A list of all other cannabinoids with similar effects to, or marketed to have similar effects to, THC-class cannabinoids
• Additional information and specificity about the term “container,” as defined in the CR

Implications for Industry

The changes passed in the CR are the most consequential changes to the hemp industry since the passage of the 2018 Farm Bill. As a result of the CR, many hemp-derived CBD products that were not controlled substances because of the 2018 Farm Bill will now revert back to being regulated as Schedule 1 Controlled Substances. This has implications not only for businesses selling hemp-derived CBD products, but also investors, banks, and other entities that do business with hemp business as there are strict limitations on doing business with companies that sell Schedule 1 Controlled Substances. Likewise, the manufacturing, distribution, dispensing, or possession with intent to manufacture, distribute, or dispense a Schedule 1 Controlled Substance is a violation of the CSA which can bring a felony criminal charge.

There is currently a House bill, introduced by Congresswoman Nancy Mace (R-SC) on November 20, 2025, that would repeal the hemp-related provisions in the CR.⁴ The bill is co-sponsored by Congressmen Thomas Massie (R-KY) and James R. Baird (R-IN) and Congresswoman Zoe Lofgren (D-CA). There is significant interest by the hemp industry and its advocates to repeal these provisions before they take effect.

Arnold & Porter will continue to monitor any new legislation or regulatory rulemaking related to hemp products. If you have any questions about this Advisory or would like more information, please reach out to one of the authors of this Advisory or your existing Arnold & Porter contacts.

© Arnold & Porter Kaye Scholer LLP 2025 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.