For the past few years, hemp-derived delta-9 products have existed in a legal gray area that many consumers interpreted as a green light. Business owners signed leases, shops opened, and Wisconsinites started regularly buying hemp-derived cannabinoids. Delta-8 gummies, THCA flower, delta-9 edibles, and countless other psychoactive hemp-derived products have popped up at gas stations, vape stores, and boutique hemp stores across the state. Frequently, websites describing these products indicate they’re a federally legal alternative to marijuana, and millions of Americans have incorporated them into their daily routines. These products help countless individuals experience relaxation, sleep better, experience pain relief, and frequently provide fun.
That’s all about to change. Congress passed a sweeping amendment redefining hemp under federal law. As the law currently stands, many products that are currently sold as legal hemp will be reclassified as illegal marijuana. This change will take effect on November 12, 2026. Marijuana, of course, is currently a controlled substance under federal law. This surprise shift impacts individuals that relied on old law, and forces them to decide whether they’ll follow the rules or to source actual marijuana products from Illinois and Michigan, where they’re legal. (It is illegal to bring marijuana from a legal state into Wisconsin).
We understand how the government’s flip is frustrating for many people who found relief through hemp-derived THC products. As Wisconsin criminal defense attorneys, we’re frequently on the front lines of the battle for and against marijuana and hemp. We’ve seen otherwise law-abiding citizens slapped with felony convictions for simply possessing marijuana. (Yes, second offense possession of marijuana is a felony in Wisconsin.) This blog post will describe how we got here, what the law says, and what the future could hold.
The background: how we got here
The catalyst for the booming hemp-derived THC market was the 2018 farm bill, which legalized hemp so long as it contained no more than 0.3% delta-9 THC by dry weight. Congress appeared to intend legalization of industrial hemp for fiber, food, and cannabidiol (CBD). Instead, the statute created a nationwide market for psychoactive products that were federally lawful and could be shipped to the consumer’s door. The sole federal threshold became whether a product remained below 0.3% delta-9 THC on a dry-weight basis.
Lawmakers failed to address other psychoactive cannabinoids. Delta-8 THC, delta-10 THC, HHC, THCP, THCA, and other variants weren’t included in the law. Additionally, the bill did not restrict post-harvest chemical conversions, which allows CBD (which isn’t intoxicating) to be transformed into intoxicating cannabinoids. So, once delta-9 THC was legal, producers began extracting non-intoxicating cannabinoids or converting CBD into other THC isomers, many of which produce psychoactive effects. The delta-9 dry-weight requirement was intended to draw a distinction between marijuana and hemp, but instead gave manufacturers a roadmap for engineering legal intoxication through chemistry rather than cultivation.
The law didn’t include any retail product regulatory framework. Dosage limits, age restrictions, and labeling weren’t required. As a result, hemp-derived THC products were brought to market without safety controls typically imposed on regulated intoxicants, such as alcohol or state-legal marijuana. Products were sold in convenience stores, smoke shops, and online marketplaces with little oversight, inconsistent disclosures, and no uniform standards for testing or consumer warnings. In effect, the 2018 farm bill created legality without regulation.
What the new law says
The legalization of hemp-derived THC initially surprised many, but the new 2026 Appropriations Act marks a drastic swing back toward pre–Farm Bill THC laws. The law fundamentally changes the federal definition of hemp and the rules for products derived from it. Key changes include:
1. “Total THC” standard
The new federal hemp laws redefine hemp by replacing the former delta-9-THC-only limit with a broader “total THC” standard. Under the revised definition, hemp may contain no more than 0.3% total THC on a dry-weight basis.
Instead of measuring only delta-9 THC, federal testing now applies a statutory formula found in 7 CFR § 990.1: Total THC = delta-9 THC + (THCA × 0.877)
This simple formula accounts for the chemical change that occurs when THCA is heated and converts into intoxicating delta-9 THC. Under the previous law, products with extremely high THCA levels could still qualify as legal hemp as long as their delta-9 THC remained below 0.3% before heating or consumption. This allowed highly intoxicating material to be sold as “hemp” despite producing marijuana-level effects when smoked or vaporized.
THCA (tetrahydrocannabinolic acid) is non-intoxicating in its raw state but converts into delta-9 THC when exposed to heat. Under the new standard, flower or concentrates with high THCA concentrations can no longer qualify as hemp if their combined THC potential exceeds the legal threshold.
CBD, by contrast, is not a THC-class cannabinoid and does not count toward total THC. Products may contain high levels of CBD without affecting hemp compliance under the new definition.
2. Per container limitations
Beyond the dry-weight THC limit, the new federal hemp law imposes a strict per-container cap on total THC. Finished hemp-derived THC products, such as edibles, tinctures, vapes, or topicals may not contain more than 0.4 milligrams of total THC per container, regardless of product type or size. A “container” is defined as the innermost wrapping or vessel in direct contact with the final product for retail sale; bulk shipping boxes or outer packaging used solely for delivery do not count. H.R.5371, Sec. 781 (amending 7 U.S.C. 1639o)
This limitation is extremely restrictive and renders most existing products non-compliant. For example, Tropics Collective’s Wild Watermelon syrup contains 1,200 mg THC per bottle, while Mood THC lists edibles with 15 mg delta-9 THC, with options for 30, 60, or 90 per package. Each of these products significantly exceeds the new 0.4 mg THC container cap. Under the law, such products would no longer qualify as hemp and would fall under federal controlled-substance enforcement.
Even at a high level, the 0.4 mg cap makes it nearly impossible to produce any commercially meaningful intoxicating hemp products that comply with federal standards. Manufacturers and retailers will need to significantly reformulate, or risk the products being classified as illegal.
3. Ban on synthetically derived cannabinoids
The law excludes synthetically derived cannabinoids by narrowing the definition of hemp. Once the law takes effect, any cannabinoid the cannabis plant cannot naturally produce, or that is manufactured or synthesized outside the plant, no longer qualifies as hemp. Lawmakers now determine legality based on production method, not just chemical structure.
Cannabinoids created through laboratory conversion, chemical processing, or other synthetic methods fall outside hemp protections, even if they resemble naturally occurring compounds.
Delta-8 THC is popular in hemp-derived edibles. It is treated very differently under the new law. Although the plant produces trace amounts naturally, commercial quantities are almost always chemically converted. Manufacturers start with hemp-derived CBD, dissolve it in a solvent, and add acid catalysts to rearrange the molecule into delta-8 THC. They then neutralize, wash, and distill the solution to separate delta-8 from byproducts. This process, called isomerization, produces most delta-8 in the market and illustrates the type of lab-created cannabinoid now excluded from legal hemp.
4. FDA involvement
Within 90 days of enactment, the U.S. Food and Drug Administration must publish a list of cannabinoids recognized as naturally produced by Cannabis sativa L. The FDA must also list THC-class cannabinoids and other cannabinoids with similar effects or marketed to have similar effects as THC compounds.
This list serves as the official baseline: any cannabinoid not included in the FDA’s “naturally occurring” list will no longer qualify as legal hemp. The agency will also clarify the definition of “container,” which affects per-product THC limits. FDA determinations and guidance will play a central role in determining which hemp-derived cannabinoids and products remain lawful under federal law.
What this means for Wisconsinites — and how to prepare now
Even though the new hemp rules take effect on November 12, 2026, people should prepare for major changes now. Many consumers rely on these products for sleep, pain relief, or stress relief. Most of those products will become illegal when the total THC rule and container limits take effect. The ban on synthetically derived cannabinoids will remove even more options from the market. Retailers who built their businesses on delta-8 or THCA flower must plan for reformulation, diversification, or a full wind-down. Consumers who assume these products will stay legal should reconsider that belief. Most intoxicating hemp items will disappear, move to underground markets, or expose buyers to marijuana-level penalties.
These changes also increase the chance of renewed enforcement. Wisconsin already treats marijuana harshly. A second-offense possession charge is a felony. A federal reclassification of many hemp products raises real risks for otherwise law-abiding residents. Landlords, employers, probation agents, and police will also adjust their expectations as the deadline approaches. Those shifts may catch many people off guard.
Our firm will track federal guidance, FDA updates, and state responses as they develop. The law is changing fast, and if you rely on these products, it’s important to keep up with those changes. To speak with one of our criminal defense lawyers about a criminal charge, call us at (414) 270-0202.