Hemp-CBD Across State Lines: Arizona

The Agriculture Improvement Act of 2018 (“2018 Farm Bill”) legalized hemp by removing the crop and its derivatives from the definition of marijuana under the Controlled Substances Act (“CSA”) and by providing a detailed framework for the cultivation of hemp. The 2018 Farm Bill gives the US Department of Agriculture (“USDA”) regulatory authority over hemp cultivation at the federal level. In turn, states have the option to maintain primary regulatory authority over the crop cultivated within their borders by submitting a plan to the USDA. This federal and state interplay has resulted in many legislative and regulatory changes at the state level. Indeed, most states have introduced (and adopted) bills that would authorize the commercial production of hemp within their borders. A smaller but growing number of states also regulate the sale of products derived from hemp.

In light of these legislative changes, we are presenting a 50-state series analyzing how each jurisdiction treats hemp-derived cannabidiol (“Hemp-CBD”). Each Sunday we will summarize a new state in alphabetical order. So far, we have covered Alabama and Alaska. This week we turn to Arizona.

The Arizona Department of Agriculture (“AZDA”) oversees the state’s hemp program.  The hemp program began in May 2018 when Senate Bill 108 was signed into law, which opened up hemp processing in the summer of 2019. It took the state a year so that it could develop the regulations and licensing program. As of now, the state’s opening up for license applications. Arizona’s hemp laws and regulations can be found here and here respectively.

Under Arizona law, growers (and nurseries), processors, harvesters, and transporters are required to obtain AZDA licenses, which AZDA publishes applications for here. The regulations also require researchers to obtain licensure. Notably, the AZDA doesn’t regulate retailers, which I’ll discuss some more below.  Like in any other state with regulated hemp, there are fees, compliance rules, and penalties for non-compliance. But the level of regulation is not even close to what we see for cannabis/marijuana in many other states.

It’s important to consider that the 2018 Farm Bill hasn’t yet been fully implemented, meaning for the time being, the 2014 Farm Bill is still in play. Even though the 2014 Farm Bill doesn’t expressly allow for commercial activity, a number of states have broadly interpreted it to permit commercial activity. Arizona is allowing commercial activity for licensees of the AZDA—in addition to allowing research as noted above—but it doesn’t appear to have taken the position that commercial sales are authorized under the 2014 Farm Bill like other states. What this means is that under federal law, and until the 2018 Farm Bill is fully implemented, the state of the laws is murky.

One of the areas in which the law is murky is the sale of hemp products. There is currently no retail license type, and the hemp regulations state that it’s prohibited to “Offer for sale, trade, transfer possession of, gift, or otherwise relinquish possession of industrial hemp plants, plant parts, or hemp seed that is capable of germination to an unauthorized person”. However, a different section of the regulations states that processors can “sell, distribute, transfer, or gift any products processed from harvested hemp that are not” unauthorized. Read together, these sections only seem to bar the resale of plant parts and not all “Hemp products”, which are defined as “all products made from industrial hemp, including cloth, cordage, fiber, fuel, grain, paint, paper, construction materials, plastics and by-products derived from sterile hemp seed or hemp seed oil.  Hemp products excludes any product made to be ingested except food made from sterile hemp seed or hemp seed oil.” While there aren’t specific retail license types, the state may be okay with limited sales of hemp products.

In terms of what those hemp products are, the AZDA itself doesn’t regulate the production of products made from hemp according to the following statement from these FAQs on its website:

Q: Will I be able to manufacture “CBD” products from industrial hemp?
A: Yes, however the Program oversight only extends from the growth and cultivation of industrial hemp, up to the point of processing. For licensed processors, the Program will focus on ensuring they receive raw material that is below 0.3% THC. If there are food handling laws, laws and regulations under the oversight of the Food and Drug Administration, or other laws related to industrial hemp of another agency, then those issues are out of the Department’s scope of regulatory oversight.

In other words, the AZDA doesn’t have oversight over certain products, but that’s not to say that other authorities don’t.

Another important nuance of the regulations is that they state that “No unauthorized person shall . . . transport, import or process industrial hemp”. It’s not yet clear what the effect of this provision will be on interstate shipments of hemp or hemp products. The 2018 Farm Bill states that individual states can’t block shipments through their borders, but (a) that law hasn’t taken effect yet, and (b) Arizona is free to stop shipments of out-of-state hemp into Arizona. So in the end, the state may just be closing off its borders to out-of-state products.

There are not a great deal of restrictions on personal use. The AZDA notes in the FAQ that people aren’t allowed to grow hemp for personal use. When it comes to marijuana, the state has a medical marijuana program which is subject to much different regulations.

Arizona’s hemp laws are still in their infancy. That’s all likely to change as the federal government implements the 2018 Farm Bill and the FDA (hopefully) comes out with CBD regulations. Stay tuned to the Canna Law Blog for any further developments with Arizona CBD and hemp laws.