On December 18, 2025, President Trump issued an executive order, "Increasing Medical Marijuana and Cannabidiol Research." While the order signals a significant federal shift toward expanded research access and a more coherent regulatory framework for medical cannabis and hemp-derived cannabinoids, it does not change, delay, or supersede the hemp-product limits scheduled to take effect in November 2026 under Section 781 of Public Law 119-37.
The executive order's policy section expressly notes that some full-spectrum CBD products will again be treated as controlled "marijuana" under the Controlled Substances Act (CSA) when Section 781 takes effect because they exceed the new per-container THC threshold. The order further states that it must be implemented "consistent with applicable law," underscoring that it does not alter statutory requirements or timelines.
Despite the significant federal attention to cannabinoids reflected in the executive order, the legal and political landscape makes clear that:
- Only Congress can amend or reverse the forthcoming per-container THC limits
- Neither an executive order nor FDA guidance has the legal authority to override statutory mandates
Key Takeaways
1. Section 781's THC-per-container limits are statutory and remain in force.
- Section 781 was enacted by Congress. Because the THC limits are statutory:
- The executive order itself acknowledges that some full-spectrum CBD products will again be controlled as marijuana under the CSA when Section 781 goes into effect because they contain THC levels above the per‑container threshold set by that law. As a result, businesses manufacturing or selling full-spectrum CBD products must continue preparing for the November reclassification of high-THC-per-container products as Schedule I marijuana.
2. The executive order signals intent to seek legislative changes—but does not make them.
- Executive orders cannot cancel or modify them
- FDA guidance cannot contradict or nullify them
- Agency policy changes cannot legally supersede congressional text
Section 2(a) of the order directs the attorney general to "take all necessary steps to complete the rulemaking process related to rescheduling marijuana to Schedule III of the CSA in the most expeditious manner," reflecting a focus on accelerating existing administrative processes rather than rewriting hemp product rules. Section 2(b) then directs senior White House officials to "work with the Congress to update the statutory definition of final hemp-derived cannabinoid products to allow Americans to benefit from access to appropriate full-spectrum CBD products while preserving the Congress's intent to restrict the sale of products that pose serious health risks."
The order also requires:
- The "development of guidance on an upper limit on milligrams of THC per serving, with considerations on per‑container limits and CBD-to-THC ratio requirements."
- HHS, FDA, CMS, and NIH to "develop research methods and models utilizing real‑world evidence to improve access to hemp-derived cannabinoid products and inform standards of care."
These actions lay groundwork for future reforms, but the order expressly provides that implementation must be "consistent with applicable law" and does not itself change existing statutory requirements, including Section 781's November THC limits.
3. Midterm elections will determine whether statutory reform is possible.
The ability to amend Section 781—and thereby alter the November 2026 restrictions—depends overwhelmingly on Congress, not the executive branch. The executive order implicitly recognizes this by assigning the White House's legislative and political staff to work with Congress on updating hemp statutory definitions, rather than attempting to redefine them unilaterally. If Republicans retain the House and win or expand control in the Senate:
- Cannabis policy reform is possible but uncertain, given internal divisions between pro‑business hemp advocates (including members from Southern and rural states) and social‑conservative factions skeptical of expanded cannabinoid markets
- Industry-driven "technical corrections" to hemp legislation could gain traction, particularly if framed as consumer-safety enhancements, clarifications of statutory inconsistencies, and protections for agricultural economies
If Democrats gain a chamber or improve margins:
- Democrats are likely to push for broader cannabis reform, clearer FDA authority over CBD, and more flexible THC thresholds that are grounded in safety data rather than rigid caps
- A Democratic shift could accelerate FDA-driven pathways for CBD and increase bipartisan appetite to modernize the hemp statutory framework
If Congress remains divided or gridlocked:
- A legislative solution before 2027 becomes highly unlikely
- Agencies may issue guidance to clarify enforcement priorities, but such guidance must remain consistent with Section 781, may reduce enforcement risk at the margins, and cannot eliminate underlying legal exposure
4. What agencies can and cannot do.
The executive order directs agencies to improve research infrastructure, develop real‑world evidence models, and support the development of a regulatory framework for hemp-derived cannabinoid products, all "in accordance with Federal law." Within that constraint, agencies have meaningful but limited tools.
Agencies CAN:
- Clarify testing protocols and methodologies to support more consistent THC and cannabinoid measurement
- Define THC-per-serving guidance, and provide per‑container considerations, as long as they operate within the statutory boundaries set by Congress
- Issue risk-based enforcement priorities and compliance policies that signal how they intend to allocate resources
- Expand research access pathways for medical marijuana and legal CBD products and develop real‑world evidence models
- Propose future regulatory frameworks that could be implemented if and when Congress updates the governing statutes
Agencies CANNOT:
- Alter the statutory THC-per-container threshold established by Section 781
- Reclassify products that Congress has effectively defined as "marijuana" by virtue of their THC content
- Create safe harbors that are inconsistent with statute, or that functionally nullify Section 781
- Delay or suspend the November 2026 effective date of the law, given the order's requirement that it be implemented consistent with applicable law and its lack of any suspension language
Only Congress can change the binding legal requirements taking effect in November.
5. Practical implications for industry stakeholders.
The executive order's tone and policy direction signal a more research‑friendly environment and a desire to rationalize CBD and hemp regulation, but they do not provide immediate regulatory relief from the November THC-per‑container limits. The research component alone will likely take more than a year. Companies should not assume that rescheduling or future guidance will solve the Section 781 problem in the near term.
Key compliance steps include:
- Reformulating products to meet THC-per-container limits set by Section 781
- Reassessing "full-spectrum" product lines that are likely to exceed the statutory per‑container threshold and therefore be treated as marijuana once the law takes effect
- Reviewing labeling, testing, and distribution practices to ensure accuracy and reduce misbranding or adulteration risk, particularly given studies showing mislabeling of CBD product composition
- Preparing for potential state-level divergence if federal restrictions tighten, as some states may attempt to preserve broader market access while federal law becomes more restrictive
- Monitoring congressional committee activity in early 2026, including any hearings or draft bills addressing hemp-derived cannabinoids, CBD, or technical corrections to Section 781
Until Congress acts, the upcoming changes will be legally enforceable, and the executive order does not provide a legal defense for products that exceed the statutory THC-per-container limit.
Conclusion
The new executive order marks an important shift in federal cannabinoid policy, emphasizing rescheduling of medical marijuana, expansion of research infrastructure, and development of a more uniform regulatory framework for hemp and CBD. However, the order must be implemented consistent with existing law and does not—and cannot—modify the statutory THC limits coming into effect in November 2026 under Section 781.
The 2026 midterm elections will be a decisive factor in determining whether Congress has the political composition necessary to amend Section 781 or chart a new federal path for cannabinoid oversight. Businesses should continue preparing for the November rule changes while closely tracking political developments, agency guidance, and potential legislative activity in 2026.