Hemp Ban 2026: What CBD Merchants Can Still Process by Card
A dated guide to the federal hemp ban from the acquirer's side: what applies on which date, what is still pending, which products stay placeable and what to send your processor.
- By the OpenGate underwriting desk
- Updated
- 21 min read
The hemp ban is the amended federal definition of hemp in Section 781 of Public Law 119-37. On November 12, 2026 it removes only products containing cannabinoids that a cannabis plant cannot naturally produce, such as THC-O. The total THC test and the 0.4 mg per container cap, which catch most THC products and many full-spectrum CBD products, start on December 11, 2026 unless Congress acts first. This guide covers what changed this week, what is still pending, and what your acquirer will ask.
In this guide
What changed this week in the hemp ban
Nothing in the law changed between October 22 and October 29, 2026. What moved is the plan to change it, plus one new official reading of the November date. Everything below is dated, so you can see what is settled and what is not.
- October 28, 2026: the Congressional Research Service published a legal sidebar on the November 12 provision. It confirms that the delay in Public Law 119-103 left the exclusion of cannabinoids not capable of being naturally produced on its original date, and that FDA had still published none of the lists the statute required.
- October 26, 2026: Representative Morgan Griffith said he wants a hemp regulation bill attached to a reconciliation package in the lame-duck session, “before the 11th of December,” according to Roll Call. Roll Call also reported that Republicans disagree on whether such a package can be assembled in time.
- November 3, 2026: the midterm elections. Any fix is expected after them, in the weeks before December 11.
- Not changed: the House-passed agriculture appropriations bill for fiscal year 2027 contains no delay, according to the CRS summary of September 28, 2026, and we found no enacted bill since.
Hemp ban dates: what applies on which day
The ban comes in two steps, set by two laws. The first, Public Law 119-37, enacted November 12, 2025, rewrote the definition of hemp and gave the market one year. The second, Public Law 119-103, signed September 2, 2026, delayed most of it.
The delay is Section 2019 of H.R. 6500. It says that until December 11, 2026 the amendments of Section 781 apply only to products described in paragraphs (1)(C)(ii)(I) and (1)(C)(iv)(I) of the amended definition. Those two paragraphs are the intermediate and final products containing “cannabinoids that are not capable of being naturally produced” by the plant. Section 781 itself takes effect 365 days after enactment, which is November 12, 2026.
| Date | What happens | Source |
|---|---|---|
| November 12, 2025 | Section 781 becomes law; FDA gets 90 days to publish its cannabinoid lists | Public Law 119-37 |
| About February 10, 2026 | FDA’s 90 days end; as of October 28, 2026 nothing published | CRS LSB11496 |
| September 2, 2026 | Public Law 119-103 delays most of Section 781 | H.R. 6500, Section 2019 |
| November 3, 2026 | Midterm elections; lame-duck session follows | Roll Call, October 26, 2026 |
| November 12, 2026 | Products containing cannabinoids the plant cannot naturally produce leave the definition of hemp | H.R. 6500, Section 2019 |
| December 11, 2026 | Everything else applies: total THC with THCA, the 0.4 mg cap, cannabinoids made outside the plant, intermediate products, seeds. The stopgap funding in the same law also expires | Section 781; H.R. 6500, Section 106 |
One wording point we could not settle. Section 2019 says “until December 11, 2026,” and CRS and the trade press describe December 11 as the date the rest applies. We could not confirm from the text alone whether the broader rules bind on the 11th itself or the day after, so treat December 10 as the last day to be clean.
What exactly takes effect on November 12
On November 12, 2026 any intermediate or final hemp-derived cannabinoid product that contains a cannabinoid the cannabis plant cannot naturally produce stops being hemp. CRS says such products are then classified as marijuana under the Controlled Substances Act to the extent they fall within that definition, or as controlled THC.
THC-O is the clear example. CRS notes that it does not occur naturally in the plant and is made by converting CBD to delta-8 and adding acetic anhydride. DEA called THC-O a Schedule I substance in a 2023 opinion letter, while the Fourth Circuit held in 2024 (Anderson v. Diamondback Investment Group) that a THC-O product derived from cannabis was hemp under the 2018 definition. The 2025 amendment writes the exclusion into the definition itself from November 12.
Two cases are less clear.
- Delta-8 and delta-10 made by conversion. Both occur in the plant in small amounts, according to CRS, so on the text they fall under paragraph (II), cannabinoids that the plant can produce but that were made outside it, which is delayed to December 11. DEA takes a harder line. Its final rule of May 4, 2026 (91 FR 23913) states that THC produced through chemical conversion, even from hemp, is synthetic under the Controlled Substances Act. Nobody should bet an account on the later date.
- HHC. The same DEA rule lists hexahydrocannabinol separately in Schedule I. We could not confirm whether FDA will treat HHC as a cannabinoid the plant can naturally produce, because FDA has not published its list.
For card processing the practical answer is simple. A sponsor bank reading two possible dates takes the earlier one, so remove THC-O, HHC and every converted cannabinoid from the site, the feeds and the subscription engine before November 12.
What the definition changes from December 11
The definition replaces the 2018 test, 0.3% delta-9 THC by dry weight, with a total THC test that includes THCA, and it adds exclusions that remove whole product families. The CRS summary lists them, and the statute text confirms them:
- viable seeds from plants above 0.3% total THC, THCA included;
- intermediate products with cannabinoids the plant cannot produce, or that were synthesized or manufactured outside it, or above 0.3% combined total THC and cannabinoids with similar effects;
- intermediate products marketed or sold as a final product, or directly to a consumer;
- final products with cannabinoids the plant cannot produce, or that were made outside it;
- final products holding more than 0.4 mg per container of total THC and cannabinoids with similar effects.
The statute keeps industrial hemp grown for stalk, fiber, grain, seed oil and other non-cannabinoid uses, and it leaves out FDA-approved drugs. Whether a cannabinoid has effects “similar” to THC is for the Secretary of Health and Human Services to determine, which is one reason FDA’s missing lists matter.
The 0.4 mg per container test, worked through
Once the cap applies, a finished product must pass a test of mass per package, and percent by weight no longer settles it. The statute defines a container as the innermost wrapping, packaging or vessel in direct contact with the product as sold at retail: the bottle, the jar, the can. Bulk shipping boxes and outer wrappings are excluded. How a certificate of analysis reports that number is shown in the CBD COA guide.
Three examples show the gap between the old test and the new one.
| Product (example figures) | Total THC in the container | Against the 0.4 mg cap |
|---|---|---|
| Full-spectrum tincture, 30 g of oil at 0.1% total THC | 30 mg | 75 times over |
| Jar of 30 gummies at 0.5 mg total THC each | 15 mg | 37.5 times over |
| One beverage can at 5 mg THC | 5 mg | 12.5 times over |
All three can pass the 2018 delta-9 test. None is hemp once the cap applies.
Now run the arithmetic the other way. For a bottle holding 30 grams of product to stay at or under 0.4 mg, total THC must be at or below 0.4 divided by 30,000, about 0.0013% by weight, or 13 parts per million. Underwriters check two consequences.
Package size changes the answer. A formula at 0.001% total THC holds 0.3 mg in a 30 gram bottle and 0.6 mg in a 60 gram bottle. The same liquid is hemp in the first and excluded in the second.
A result of ND on a certificate of analysis proves less than it seems. Not detected means the amount sits below the lab’s reporting limit. If that limit is 0.01% by weight, an ND result on a 30 gram bottle shows only that the bottle holds less than 3 mg, which says nothing about 0.4 mg. Ask the lab for a method sensitive enough for your container size, and for the result in milligrams per container.
CBD, delta-8, THCA and the other products: which stay placeable
A catalog stays placeable when every SKU sold to US customers can be shown to sit inside the definition in force on the day of the sale. The table gives the reading an underwriter is likely to make. It describes acquirer practice; the legal question belongs to your counsel.
| Product line | Under the amended definition | What an acquirer does with it |
|---|---|---|
| Hemp seed oil, hemp hearts, fiber and other non-cannabinoid goods | Kept inside as industrial hemp | Boards it, often outside the CBD category |
| CBD isolate and broad-spectrum products at or under 0.4 mg total THC per container, with cannabinoids extracted from the plant | Hemp, if the lab report shows it | Boards it with container-level lab reports |
| Full-spectrum CBD above 0.4 mg total THC per container | Excluded from December 11, 2026 | Asks for reformulation or removal before the date |
| Hemp-derived delta-9 gummies and THC beverages | Excluded from December 11, 2026 | Stops boarding and gives existing accounts a removal deadline |
| THCA flower and pre-rolls above 0.3% total THC | Excluded from December 11, 2026, since THCA counts | Stops boarding |
| Delta-8, delta-10 and other cannabinoids made by converting CBD | Excluded by December 11, 2026 on the text, and from November 12 on DEA’s reading | Stops boarding; some acquirers already refuse them |
| Cannabinoids the plant cannot produce, such as THC-O | Excluded from November 12, 2026 | Declines |
Minor cannabinoids need a question to your supplier. CBN, CBG or CBC extracted from the plant and the same molecule produced by conversion in a reactor land on opposite sides of the definition. Get the production method in writing for each ingredient. The statute speaks of products for human or animal use, so expect pet tinctures and chews to be read against the same cap.
What is still pending in Congress, the courts and the agencies
Nothing pending has the force of law today. The table lists what could change the dates, with the source and the date we read it.
| Item | Status as of October 29, 2026 | Source |
|---|---|---|
| Further delay, two more years | Three bills introduced (H.R. 7024, H.R. 7010, S. 3686); none passed | CRS IF13136, September 28, 2026 |
| Repeal of the changes | H.R. 6209 introduced; not passed | CRS IF13136 |
| Regulatory framework instead of a ban | Several bills, among them H.R. 7212, H.R. 9830, H.R. 10079 and S. 3474; Representative Griffith’s version would set default limits of 5 mg per serving and 30 mg per package if FDA does not act within three years | CRS; Roll Call, October 26, 2026 |
| Reconciliation vehicle | Floated on October 26, 2026 for the lame-duck session; the House adopted a budget resolution in July and the Senate has not acted on its own | Roll Call |
| Senate vote on the delay | A motion to table an amendment that would have struck the delay passed 61 to 32 on August 8, 2026 | Congress.gov, H.R. 6500 actions |
| White House position | Executive order of December 18, 2025 told a White House official to work with Congress on allowing appropriate full-spectrum CBD products; it changed no statute. A law firm reported an unconfirmed commitment of no further extensions | White House; Foley Hoag, September 15, 2026 |
| FDA lists and the term container | Not published as of October 28, 2026 | CRS LSB11496 |
| DEA | Listed HHC separately in Schedule I on May 4, 2026, calling it a technical change. We found no DEA guidance on enforcing the November 12 date | Federal Register, 91 FR 23913 |
| USDA | Delayed until December 31, 2026 the rule that all hemp be tested by a DEA-registered lab. We found no USDA guidance on the new definition | USDA AMS hemp page |
| Court challenges | We found no lawsuit against the federal definition itself. The suits we found target state laws, such as Ohio’s Senate Bill 56 and Texas rules | Foley Hoag, September 15, 2026 |
Thirty-five state and territory attorneys general wrote to Congress in August 2026 asking it not to reverse the ban, according to the same Foley Hoag note. The letter shows how much resistance a plain repeal faces. We cannot predict the outcome, and neither can anyone selling you a guarantee.
State laws run on their own calendars. Illinois’ Hemp Act takes effect November 12, 2026, Ohio’s Senate Bill 56 took effect March 20, 2026, and New Jersey’s beverage deadline is November 13, 2026, all as reported by Foley Hoag. A federal delay does not suspend any of them. We did not open the state statutes, so confirm the dates for the states you ship to.
Why a change to an agriculture law decides your card processing
Acquirers board CBD because hemp is carved out of the Controlled Substances Act, and a product that leaves the definition of hemp falls back under that Act. A sponsor bank will not knowingly settle card sales of a federally controlled substance to US cardholders.
The card schemes point the same way. Visa’s Core Rules provide that “a Transaction must be legal in both the Cardholder’s jurisdiction and the Merchant Outlet’s jurisdiction” (ID# 0000385, the public edition we opened on October 29, 2026). Mastercard’s rules, as quoted in a 2024 Goodwin note on cannabis payments, bar the sale of a product other than in full compliance with applicable law. We could not confirm that wording in Mastercard’s current edition, which is more than 500 pages. Both schemes hold the acquirer responsible for what its merchants sell, so an acquirer that keeps an out-of-definition product on its books risks fines and its standing, and has every reason to move early.
The consequence for a merchant is the one nobody wants to read. An acquirer that ends a relationship over illegal transactions can record that reason on the MATCH list, where it stays for years and follows the business and its owners to the next application. The MATCH guide explains how a listing works and what it takes to challenge one. The cheapest protection is to remove excluded products yourself, on a date you can document, before the acquirer has to.
Processors have already moved on their own calendars. In August 2026 Square began winding down the Square CBD program and set seller deadlines ahead of both federal dates, and we found no Square page that restates them. Stripe’s CBD policy refers to local THC limits, and the Shopify CBD rules bind merchants to all applicable federal law, so both narrow on the day the definition does. A delay voted in Congress does not bind a processor.
Decision tree: what to do with each product
Work through the questions in order for every SKU. Stop at the first “yes.”
- Does the product contain THC-O, HHC, or any cannabinoid the plant cannot make? Remove it before November 12, 2026.
- Is any cannabinoid in it made by converting another, as delta-8 and delta-10 are usually made from CBD? Remove it before November 12 for card purposes. The statute text gives you until December 11, but your acquirer is not bound by that reading.
- Is it flower, a pre-roll or a concentrate above 0.3% total THC, THCA included? It leaves the definition on December 11. Plan the removal now.
- Does one container hold more than 0.4 mg of total THC, THCA included? Reformulate and retest, or remove it, before December 11. Do not split the product into smaller containers to slip under the cap while FDA has not defined the term.
- Is it CBD isolate, a broad-spectrum product under the cap, or a non-cannabinoid hemp good? Keep it, and document it with container-level lab reports and a production statement.
If Congress passes a framework before December 11, you will rerun the questions against its limits. Until then, the statute is the plan.
What to do before November 12, before December 11 and after
Do the review yourself before the processor asks, and send it the result.
- This week: compute total THC per container for every SKU and sort the catalog into keep, reformulate and remove. Ask each supplier how every cannabinoid was produced, in writing.
- Before November 12: remove THC-O, HHC and converted cannabinoids from the storefront, product feeds and subscription engine, and keep the dates. Write to your current processor with the SKU sheet. A merchant who reports first is reviewed as a managed risk.
- By late November: order new lab reports for reformulated products, with total THC and THCA in milligrams per container and the lab’s reporting limit visible.
- Before December 11: remove or reformulate everything above the cap, cancel rebills on discontinued products and tell the customers. An autoship that keeps charging for a product you can no longer send becomes a dispute.
- After December 11, if nothing passed: audit the live site against the SKU sheet, confirm your shipping matrix blocks states with stricter laws, and expect acquirers to re-underwrite.
- After December 11, if Congress delays or reshapes the rule: keep your documentation, because processors and states may hold to their own deadlines, and read the new text before you restock.
Line up a second option before you need it. If your processor leaves the category, the recovery sequence in the guide to a closed Stripe or PayPal account applies to any processor.
What the underwriting file needs after the change
The file needs the documents it always needed, with numbers that answer the new test. The standard set is described in the CBD payment processing guide and on our CBD merchant account page. These are the items that change:
- A SKU sheet with one row per product: net contents, cannabinoids, total THC in milligrams per container, status (unchanged, reformulated, discontinued) and, for discontinued items, the date they left the site.
- Certificates of analysis that report total THC with THCA, in milligrams per container, with the lab’s reporting limit visible.
- A production statement from your manufacturer for every cannabinoid: extracted from the plant, or made outside it.
- Labels that state net weight or volume, so a reviewer can redo the arithmetic.
- A shipping matrix: the states you block at checkout and how the block works.
- Revenue by product family for the last three to six months, so the acquirer can size limits on the volume that survives.
The last item weighs more than merchants expect. As an illustration, take a brand at $80,000 a month: 30% from isolate topicals and capsules, 45% from full-spectrum tinctures, 25% from delta-8 gummies. The acquirer sees $24,000 that is unaffected, $36,000 that depends on a reformulation nobody has tested yet, and $20,000 that ends. It sets the monthly cap and the reserve on the first number and revisits them when the new lab reports arrive. A file that hides the mix gets the same treatment later, with less goodwill.
Workarounds that end accounts
Four moves look like solutions and cost the account. Acquirers with hemp programs decline files built on them.
- Keeping excluded products on the site behind a login or a pickup option while the account is approved for compliant CBD.
- Running excluded products through an account approved for something else. Undisclosed products are grounds for termination.
- Splitting a product into smaller packages to get under 0.4 mg while FDA has not clarified the word container. An acquirer will not price an unsettled reading.
- Arguing state legality to a bank bound by federal law and scheme rules.
Sources we opened, and what we could not confirm
We opened each source below on October 29, 2026. Statements from law firms and the press are marked as such, and none of them replaces the statute.
| Source | Date | What it establishes |
|---|---|---|
| P.L. 119-37, Division B, Section 781 | Enacted November 12, 2025 | The definition, the exclusions, the container definition, the FDA lists |
| H.R. 6500, Section 2019 | Signed September 2, 2026 | The delay to December 11, 2026 and its carve-out |
| CRS IF13136 | September 28, 2026 | Summary, pending bills, FDA status |
| CRS LSB11496 | October 28, 2026 | Reading of the November 12 provision, DEA and court positions |
| Roll Call | October 26, 2026 | The reconciliation plan |
| Foley Hoag | September 15, 2026 | State laws and litigation (law firm, secondary) |
| DEA final rule on HHC | May 4, 2026 | DEA’s position on converted THC |
| Executive order of December 18, 2025 | December 18, 2025 | White House direction on full-spectrum CBD |
| USDA AMS hemp page | Read October 29, 2026 | Testing-lab enforcement delay |
| Visa Core Rules | Public edition, read October 29, 2026 | The legality rule, ID# 0000385 |
What we could not confirm:
- whether the full definition binds on December 11 or the day after;
- which side of the line HHC and converted delta-8 fall on under FDA’s future list;
- the wording of Mastercard’s current rule on illegal transactions;
- any Square page restating its CBD deadlines after the delay;
- the state statutes behind the Illinois, Ohio and New Jersey dates;
- the reported White House commitment of no further extensions.
If the law has changed by the time you read this, the method still holds: find the definition in force that day, compute each SKU against it, and document the result.
What to send us, and what to expect
Send your hemp file with the SKU sheet, the container-level lab reports, the production statements and three to six months of statements. An underwriter reads the catalog against the definition in force and replies within 1 business day: a written offer with rates, reserve and limits, a list of what is missing, or a no with the reason. Applying is free, and you sign nothing before you have read the offer.