New “Industrial Hemp” Definition – More Loopholes Instead of Real Reform?

The new federal 0.4mg Total THC limit that goes into effect this November has been the focus of much discussion in recent months but perhaps less discussed are the “industrial hemp” carveouts from that limit, and they may be broader than you think. Of course, for several years, “hemp” has been exempt from the federal Controlled Substances Act (CSA), but the coming changes push finished hemp-derived cannabinoid products that exceed 0.4 mgs Total THC per container back into Schedule I.

But the story doesn’t end there. The new language continues to protect “industrial hemp” by keeping it inside the federal definition of hemp (and therefore outside the CSA). Starting in November, “industrial hemp” will include hemp grown for certain uses (see footnote[1]), but bottom line: Those seeds, crops, and products will be considered “industrial hemp” and stay outside the CSA, even after November, and regardless of whether they are consumable in nature.

Under this framework, nuanced issues exist such as:

• (A) reads like classic industrial uses (think hempcrete, fiber, and materials). But it’s not expressly limited to non-consumables. And because “non-cannabinoid compound” isn’t defined, could stalk-based consumable products featuring non-cannabinoid constituents (e.g., terpenes or flavonoids) fit more comfortably than people expect?
• (B) more clearly covers hemp-seed foods (hulled hemp seed, hemp seed protein, hemp seed oil). FDA did not object to requests for GRAS status for these products, and likely will not revoke that GRAS status, even when THC levels are, at times, far above .4 mg per container. Does this also signal room for other compliant, seed-based consumables?
• (C) exempts “microgreens” from the CSA and “other edible hemp leaf products,” such as culinary leaves and hemp leaf powder marketed for nutritional content. These items must be produced from seeds that do not exceed .3% Total THC on a dry weight basis, but otherwise do not appear to be limited as to Total THC. Could this indicate flexibility for other hemp leaf-based consumables that can offer nutritional value?

Questions like these will continue to arise until policymakers adopt REAL cannabis reform by removing “marihuana” from the CSA and regulating cannabinoid products based on Three Pillars (safety/testing, packaging/labeling, youth protection). Cannabis products should be regulated based on form factor to protect public safety, but no naturally occurring form of “marihuana” should be a controlled substance. As long as exemptions create carveouts while other variations of the cannabis plant remain controlled, we will continue to see creative legal arguments and scientific avenues to create access for those who need it most.

Footnote[1] (A) grown for the use of the stalk of the plant, fiber produced from such a stalk, or any other non-cannabinoid derivative, mixture, preparation, or manufacture of such a stalk.

(B) grown for the use of the whole grain, oil, cake, nut, hull, or any other non-cannabinoid compound, derivative, mixture, preparation, or manufacture of the seeds of such plant;

(C) grown for purposes of producing microgreens or other edible hemp leaf products intended for human consumption that are derived from an immature hemp plant that is grown from seeds that do not exceed the threshold for total tetrahydrocannabinols concentration specified in paragraph (1)(C)(i);

(D) that is a plant that does not enter the stream of commerce and is intended to support hemp research at an institution of higher education (as defined in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001)) or an independent research institute; or

(E) grown for the use of a viable seed of the plant produced solely for the production or manufacture of any material described in subparagraphs (A) through (D).

April 29, 2026

This article was written by Kight Law attorney Amber Lengacher. Kight Law represents hemp businesses in the US and throughout the world.