Tucked away in the text of the law that ended the 2025 federal shutdown is a provision amending a handful of paragraphs from the 2018 farm bill. Although seemingly minor, this amendment may threaten the 28-billion-dollar hemp supplement industry and call into question a number of federal trademark registrations.
In 2018, the federal government passed what is commonly known as the “farm bill,” which carved out “hemp” from the definition of marijuana, legalizing hemp’s production and sale. While the intended purpose of this bill was to allow for the cultivation of hemp for products like textiles, the broad definition of hemp allowed for numerous other uses. Under the farm bill, legal “hemp” was defined as cannabis and cannabis derivatives “containing no more than 0.3% delta-9 tetrahydrocannabinol (delta-9 THC) on a dry-weight basis.” This broad language seemingly allowed businesses to legally begin producing and selling THC-infused supplements that contained less than .3% delta-9 but significantly higher quantities of other psychoactive THC compounds, such as delta-8. As a result of this, the hemp supplement industry exploded, with products such as delta-8 gummies appearing at pharmacies and supermarkets across the nation.
One of the less obvious impacts of this legislation was the impact on trademark protection for THC products. To receive a trademark registration, an applicant is required to demonstrate that their use in commerce is lawful. This was previously insurmountable for THC products because they were considered marijuana, a federally illegal drug. However, because the farm bill included language exempting products with less than .3% delta-9, makers of such products could now register their marks if they included language that their product was below that amount. Many companies seized this opportunity and quickly applied to register their marks. Currently, over 3,000 live federal registrations contain some variation of the farm bill’s delta-9 language, with thousands of similar applications currently pending.
However, the amendment to the farm bill may have called this into question. Under the new language, which becomes effective on November 12, 2026, legal hemp does not include any product with a total THC concentration of more than .3% on a dry-weight basis or any product with more than 0.4 milligrams of THC per container. Almost all consumable hemp supplements are well above both these thresholds, meaning that once the amended definition takes effect on November 12, 2026, their sale and production may no longer be legal at the federal level. Because of this, once the amended definition becomes effective on November 12, 2026, reliance on the farm bill’s previous definition of hemp may no longer be sufficient to demonstrate lawful use in commerce for federal trademark registrations. It remains unclear whether the USPTO would cancel such registrations sua sponte or instead refuse maintenance filings submitted on or after the effective date.
Even outside trademark issues, unless Congress and the President backtrack on this new language before November 2026, the entire hemp supplement industry may be severely hampered. Although the sale of THC products has been legalized in many states, this new federal scheme could prohibit the transfer of such goods across state lines, greatly inhibiting the ability of the industry to manufacture or sell their products. Moreover, although many states have legalized these products, the Supremacy Clause provides that federal law would control in the event of a direct conflict, potentially limiting interstate commerce and raising renewed preemption questions.
With the legality of many THC supplements now in question, trademark owners face a separate but equally significant concern: federal registrations require lawful use in commerce. If the underlying goods are no longer lawful under federal law, maintenance filings, renewals, and future enforcement actions could become increasingly complicated. Brand owners who relied on the Farm Bill’s delta-9 safe harbor should proactively evaluating both compliance and portfolio strategy before upcoming maintenance deadlines.
The full text of the shutdown law can be found here- https://www.congress.gov/bill/119th-congress/house-bill/5371/text
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