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). Today we turn to Pennsylvania.

The Pennsylvania Department of Agriculture (PDA) regulates hemp cultivation in Pennsylvania. PDA has an industrial hemp program that requires participants to submit applications and obtain permits to cultivate hemp in the state. There are fairly robust requirements to get a permit unlike in some other states: owners must undergo federal background checks and submit detailed information about their business in order to get permitted. PDA also imposes detailed reporting requirements and requires that cultivators follow strict guidelines when growing hemp.

Notably, Pennsylvania’s hemp production plan was approved by the USDA but has not yet taken effect. When it does take effect, it will impose much more robust rules on hemp cultivators, and will also require processors to obtain licenses. Expect big changes in the future.

When it comes to Hemp CBD products, PDA generally follows the FDA’s position when it comes to Hemp CBD products, and does not allow Hemp CBD to be added to foods. PDA also states, for what it’s worth, that products and product labels must comply with any applicable law, including FDA laws. While PDA has not directly addressed most other Hemp CBD products (such as cosmetics), we can assume that the agency would follow in the FDA’s footsteps given its incorporation of FDA policy relative to foods. Therefore, sellers of products that contain Hemp CBD that do not make medical claims and are not on the FDA’s target list for any other reason might be safer in Pennsylvania.

For additional updates on changes to Pennsylvania hemp laws and Hemp CBD laws, please stay tuned to the Canna Law Blog.  For previous coverage in this series, check out the links below:

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). Today we turn to Oklahoma.

In April 2018, shortly before the passage of the 2018 Farm Bill, Oklahoma enacted the Oklahoma Agricultural Industrial Hemp Pilot Program (OAIHPP). The Oklahoma Department of Agriculture, Food, and Forestry  (ODAFF) passed temporary rules in May of 2018.

At the time that the OAIHPP was established, the 2014 Farm Bill governed hemp and Oklahoma’s program reflects that. According to ODAFF’s website, “a farmer wishing to grow industrial hemp must establish a relationship with a University or college that belongs to the Oklahoma State System of Higher Education and has a plant science curriculum. Once the farmer has a relationship with a University or College they can apply to the Department to receive a license for each cultivation site.”

In April 2019, Oklahoma passed Senate Bill 868, which directs ODAFF, in consultation with the Governor and Attorney General to submit a hemp cultivation plan to the USDA to bring the state’s hemp program in compliance with the 2018 Farm Bill.  According to the USDA website, Oklahoma is currently drafting a hemp cultivation plan.

When it comes to Hemp CBD there is yet another piece of recent legislation in the mix:  Senate Bill 238 which passed in May 2019.  Products containing Hemp CBD, other than pharmaceuticals approved by the FDA (i.e., Epidiolex), must include the following on the label:

1. The country of origin of the cannabidiol; and
2. Whether the cannabidiol is synthetic or natural.

SB 238 also states that, “retail sales of industrial hemp and hemp products may be conducted without a license so long as the products and the hemp used in the products were grown and cultivated legally in this state or another state or jurisdiction and meet the same or substantially the same requirements for processing hemp products or growing hemp.” This appears to indicate that Hemp CBD sales in Oklahoma are OK (apologies, I had to have at least one shameless pun).

SB 238 also states that the addition of hemp derivatives, including Hemp CBD, does not make “cosmetics, personal care products, and products intended for human or animal consumption” adulterated. A license is not required to manufacture Hemp CBD products. However, SB 538 does not “exempt any individual or entity from compliance with food safety and licensure laws, rules and regulations as set forth under the Oklahoma Public Health Code.” That clarification does not explicitly mention the Food, Drug and Cosmetic Act or FDA regulation meaning that Oklahoma has left the door open to Hemp CBD products that the FDA opposes, such as foods and dietary supplements.

Oklahoma is still working on its hemp cultivation plan. It may not have the most robust Hemp CBD regulations but SB 238 at least addresses Hemp CBD, which is more than many other states can say.

For previous coverage in this series, check out the links below:

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”). Today we turn to Ohio.

Hemp cultivation in Ohio is regulated by the Ohio Department of Agriculture (“ODA”). Notably, Ohio was among the first states that got a 2018 Farm Bill hemp production plan approved by the USDA. Way to go, Buckeyes! People who want to grow hemp in Ohio will need to obtain licenses from the ODA and hemp cultivated there is subject to testing requirements established by the USDA’s interim hemp rules.

When it comes to Hemp-CBD, the state has not dialed in its regulatory regime. The ODA is in the process of reviewing public testimony before adopting rules affecting the processing of Hemp CBD products. In late 2019, there was a public hearing concerning proposed processing rules that would govern many different types of Hemp-CBD products (as of today, those regulations haven’t been officially adopted). It’s important to note that these rules would not let anyone go and start processing. Instead, licenses would be required and it looks like the state’s requirements will be pretty comprehensive.

The products that the rules would govern include “hemp buds, flowers, cigarettes, cigars, shredded hemp, cosmetics, personal care products, dietary supplements or food intended for animal or human consumption, cloth, cordage, fiber, fuel, paint, paper, particleboard, and any other product.” So basically, anything under the sun. Notably, the rules anticipate the production of Hemp-CBD products (e.g., cosmetics and food) but also anticipate the use of hemp in all kinds of other products that will not be marketed for Hemp-CBD content (e.g., paint and fuel). These rules are therefore extremely comprehensive.

These rules would also impose some strict requirements on manufacture, including pretty standard things that our hemp attorneys see in other states. This includes testing and labeling, to start.

In sum, while Ohio probably isn’t anywhere near the top of the list when people think about states that allow hemp, it’s actually more friendly than a lot of other large states (looking at you California). While states like California are still in prohibitionist mode for all kinds of Hemp-CBD products, states like Ohio are taking the wheel. For more updates on Ohio’s Hemp-CBD laws, stay tuned to the Canna Law Blog.

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”). Today we turn to North Dakota.

In 2019, North Dakota legalized the cultivation of hemp under the 2014 Farm Bill. However, the new law (HB 1349) does not address the regulation of Hemp-CBD products.

According to guidelines released by the Attorney General (AG), the state seems to defer to FDA guidance when regulating Hemp-CBD products. In addition, even following the enactment of HB 1349, which excludes the term “hemp” from marijuana, law enforcement remained hostile to Hemp-CBD making the sale of these products in the state risky.

Given that the state has decided not to submit a plan under the 2018 Farm Bill and instead continues operating under the 2014 Farm Bill until it expires on October 30, 2020, it seems unlikely that North Dakota will change its position on the sale of these products. So for the time being, CBD companies should refrain from selling their products in this not-so-hemp-friendly state.

For previous coverage in this series, check out the links below:

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”). Today we turn to North Carolina.

The North Carolina Department of Agriculture (“NCDA”) provides a useful summary of the state’s law regarding hemp cultivation:

Hemp production has been legalized in North Carolina, but only as part of the state’s pilot program as allowed under federal law. The N.C. General Assembly passed Senate Bill 313 in 2015, allowing the Industrial Hemp Commission to develop the rules and licensing structure necessary to stay within federal laws. The law was modified in 2016 in House Bill 992. The Industrial Hemp Commission adopted temporary rules for review in February 2017; these were approved by the Rules Review Commission of the Office of Administrative Hearings.

Currently, NCDA is operating under the 2014 Farm Bill, not the 2018 Farm Bill. Apparently, that’s how the state wants to continue to operate.

On December 19, 2019 the North Carolina Industrial Hemp Commission (the “Commission”) sent a letter USDA Secretary Sonny Perdue. The Commission is a group of individuals, appointed by the Governor and representing agricultural and law enforcement interests, who have the authority to oversee the hemp cultivation in North Carolina.

The Commission’s letter is worth reading. In short, the letter basically opts out of the USDA’s hemp cultivation program meaning that North Carolina will continue to operate under the 2014 Farm Bill until its hemp provisions expire on October 31, 2020 or “until a viable pathway forward is available to satisfy federal and state requirements.” This is in large part due to the USDA’s interim hemp rules, which the Commission believes “do not provide a framework flexible enough to ‘help expand production and sales of domestic hemp, benefiting both U.S. producers and consumers.’”

The Commission goes on to outline “significant concerns” with the interim hemp rules:

• The interim hemp rules provide that hemp that tests above 0.5% THC will result in a negligent violation. Under the 2018 Farm Bill, if a grower receives three negligent violations in five-year window that grower is prohibited from cultivating hemp for five years. The Commission believes that negligence standard should be set at 1% because a number of factors such as weather conditions and sampling protocols can lead to test results at or above 0.5% THC. The Commission is concerned that growers will be harshly penalized and suffer massive economic loss based on “an arbitrary number.”
• North Carolina also raised concerns about the interim rules requiring testing for all hemp. The Commission has some numbers to back this up: ” This past fall, [NCDA] tested 55% of the thousands of hemp fields planted across our state, with employees working up to 70 hours a week. It is impossible to ask this staff to do more and we are not aware of any state that has been able to physically sample each field.” The Commission suggests that states be allowed to perform random and risk-based sampling of hemp grown in their state.
• The interim hemp rules require that hemp be tested 15-days prior to harvest. The Commission believes this “narrow timeframe” is an “unnecessary obstacle for compliance.” Factors such as weather could require that growers harvest hemp earlier than expected, without knowing whether hemp material is compliant. The Commission is also concerned about “inevitable delays in laboratory results because of high sample volumes” which are exacerbated by the interim hemp rules’ requirement that labs testing hemp to obtain DEA registration.

On January 31, 2020, NCDA sent a letter to hemp licensees stating that the future of the state’s hemp program was uncertain due to the decision not to submit a plan to the USDA. Attorney Rod Kight provides a copy of this recent letter on his blog, Kight on Cannabis.

North  Carolina issues licenses for hemp cultivation and requires that hemp processors be registered with the state and report to NCDA. When it comes to Hemp CBD products, North Carolina lacks robust regulation. For now, we just have guidance documents. According to a February 8, 2019, NCDA press release. Hemp CBD “cannot be legally added to any human food or animal feed that is for sale.” The press release also indicates that the state will seize or embargo products marketed as drugs. The sale of Hemp CBD cosmetic products are not explicitly mentioned in the press release.

Last year North Carolina lawmakers considered Senate Bill 315 (” SB 315“) which would amend state law on hemp in accordance with the 2018 Farm Bill and would also govern Hemp CBD products. SB 315 may have another chance this year but has come with some controversy.

SB 315 would grant NCDA the ability to “regulate cannabinoid related compounds” which would not include smokable hemp. NCDA would oversee good manufacturing practices for manufacturing, packaging, labeling, or holding operations for Hemp CBD. Manufacturing Hemp CBD products would require a valid NCDA license. A license would also be required for out-of-state and online retailers.

Much of the controversy surrounding SB 315 stems from the bill’s prohibition of smokable hemp, which is defined as “[h]arvested raw or dried hemp plant material, including hemp buds or hemp flowers, hemp cigars, and hemp cigarettes.” If passed, SB 315 would impose the following penalties related to smokable hemp on June 1, 2020:

• A civil penalty for knowingly or intentionally manufacturing, delivering, selling, or possessing smokable hemp
• A Class 1 misdemeanor for knowingly or intentionally manufacturing, delivering, selling, or possessing smokable hemp

SB 315 would also require that NCDA and other state agencies submit a report on smokable hemp to the legislature.

North Carolina has a lot going on with regards to Hemp CBD. Many pieces are still in flux as the state has essentially rebuked the USDA’s interim hemp rules and is grappling with Hemp CBD products including smokable hemp. We’ll continue to watch as things develop in North Carolina.

For previous coverage in this series, check out the links below:

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”). Today we head to New Mexico.

In 2017, New Mexico enacted Senate Bill 6, which established an industrial hemp program. The bill tasked the New Mexico Department of Agriculture (“NMDA”) with overseeing the production of the crop.

Two years later, state lawmakers passed House Bill 581, codified, in part, at N.M.S.A. § 76-24, which provides a regulatory framework for the manufacture of Hemp CBD products, also known as “hemp finished products.” A “hemp finished product” is “a hemp product that is intended for retail sale and containing hemp or hemp extracts that includes food, food additives and herbs for human use, including consumption, that has a THC content of not more than three-tenths percent.” Unlike industrial hemp, hemp finished products are regulated by the New Mexico Environment Department (“NMED”).

Following the enactment of House Bill 581, the NMED began the rulemaking process and issued the first set of proposed rules (“Emergency Rules”), which are scheduled to remain in effect through January 31, 2020. On December 2, 2019, the agency held a meeting for public comments to discuss the proposed final rules, but these rules won’t be adopted for at least a few more weeks – at least not until the Emergency Rules expire.

Both the Emergency Rules and proposed final rules require state extractors, processors, manufacturers and wholesalers to secure a permit from the NMED and meet certain manufacturing requirements to operate a hemp facility where hemp finished products intended “for human ingestion, absorption, or smokable products” are produced.

Note, however, that the proposed final rules intend to remove “food, food additives and herbs” from the definition of hemp finished product.” This suggests that the NMED wants to align its rules with the Food and Drug Administration’s policy on the sale and marketing of these products.

But for the time being, the manufacture, sale and marketing of food products seems allowed. Pursuant to House Bill 581 and the Emergency Rules, products intended for human consumption by eating or drinking are subject to the provisions of the Food Service Sanitation Act and the New Mexico Food Act (“NMFA”) but are not deemed adulterated. These products must also meet applicable labeling requirement in the NMFA and 21 C.F.R. 101 et seq. (food labeling).

The sale and marketing of smokables and cosmetics is not expressly authorized nor restricted but the Emergency Rules and proposed final rules mandate that these products meet applicable federal labeling requirements.

In addition to meeting federal labeling requirements, all categories of products must meet certain labeling and marketing requirements, including but not limited to:

1. Clearly identity on the front display panel:
   1. CBD content in the package, labeled in milligram; and
   2. Total THC content in the package, labeled in milligrams.
2. Unless otherwise approved, statements representing or inferring a hemp finished product contains no THC are prohibited.
3. Hemp facilities shall design, maintain and use a coding system that will identify the date and place of manufacture of each hemp product that shall be clearly visible on the product label or securely affixed to the body of the container.
4. No more than 0.3% Total THC concentration and meet other specific testing requirements.
5. Contain no health, medical or benefit claims on the label.

Therefore, for the time being, New Mexico seems rather friendly toward the manufacture, sale and marketing of Hemp-CBD products. This could always change once the proposed final rules go into effect.

For previous coverage in this series, check out the links below:

On January 2, the Food and Drug Administration (“FDA”) issued non-binding guidance (“Guidance”) in which the agency explains how it intends to prioritize enforcement actions to tackle the growing increase in youth use of electronic nicotine delivery systems (“ENDS”)–more commonly and broadly referred to as “e-cigarettes”–as well as to address vaping-associated lung injuries. According to a press release by the U.S. Department of Health and Human Services, the FDA intends to ban flavored cartridge-based ENDS that appeal to children, including fruit and mint flavors, beginning 30 days from the publication of the notice of availability of this guidance in the Federal Register.

Specifically, the agency intends to prioritize enforcement against:

• Any flavored, cartridge-based ENDS product (other than a tobacco- or menthol-flavored ENDS product);
• All other ENDS products for which the manufacturer has failed to take (or is failing to take) adequate measures to prevent minors’ access; and
• Any ENDS product that is targeted to minors or whose marketing is likely to promote use of ENDS by minors.

Since the enactment of the 2018 Farm Bill, a wide range of hemp-derived CBD (“Hemp CBD”) products have sparked the interest of American consumers, including CBD vaping devices. Despite the growing popularity of CBD smokable products, the FDA has yet to issue regulations for these products. Consequently, the sale of Hemp-CBD-infused smokable products is in a legal gray area, not explicitly allowed nor prohibited under federal law.

The lack of FDA regulation surrounding this issue likely stems from the fact that many of these products are free of tobacco and/or nicotine.

As we previously discussed, federal law gives the agency the authority to regulate the sale, manufacture, and marketing of tobacco products under the 2009 Family Smoking Prevention and Tobacco Control Act (“TCA”). In 2016, the FDA finalized a rule that extended its regulatory authority to all products meeting the TCA’s statutory definition of a tobacco product, including e-cigarettes.

The FDA now oversees all products “made or derived from tobacco that [are] intended for human consumption . . . .” The definition also includes components, parts, and accessories of tobacco products and excludes products that are classified as drugs or devices under the Food, Drug, and Cosmetic Act (“FDCA”), even if those products are made or derived from tobacco.

The FDA has consistently declined to interpret “tobacco products” so broadly as to include products free of nicotine or tobacco. Under this reasoning, it seems to follow that most Hemp-CBD smokable products, which are free of nicotine and tobacco, would not be considered “tobacco products.”

The newly published Guidance seems consistent with this rationale.

The Guidance expressly provides that it “does not address products that are not tobacco products” and that only “[l]iquids that do not contain nicotine or other material or derived from tobacco, but that are intended or reasonably expected to be used with or for the human consumption of a tobacco product, may be components or parts and, therefore, subject to FDA’s tobacco control authorities.” (Emphasis added).

So, while most Hemp-CBD-infused vaping devices don’t fall under the FDA’s jurisdiction, and thus, won’t be affected by this upcoming enforcement effort, industry players should keep in mind that:

1. Any flavored CBD vaping product that does contain nicotine is subject to this federal ban;
2. Any CBD vaping product that contains nicotine and for which the manufacturer fails to take adequate measures to limit minors’ access is subject to FDA enforcement actions;
3. Any CBD vaping product that is targeted at minors or whose marketing is likely to promote the ENDS use by minors falls under the FDA ban; and
4. The manufacture, sale and marketing of non-flavored, nicotine or tobacco-free CBD vaping products, as well as other smokable hemp products, may nonetheless be banned under certain state laws. Accordingly, manufacturers, distributors and retailers of these products should refrain from selling their products in these jurisdictions to mitigate the risk of local enforcement actions.

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”). Today we head to the home of Bruce Springsteen, Tony Soprano, Thomas Edison and marijuana-friendly presidential candidate Cory Booker: New Jersey.

New Jersey forever cemented itself in hemp history by becoming one of the first states to have a hemp plan approved by the USDA.

It shouldn’t surprise anyone who has been paying attention to New Jersey’s hemp program that the state was one of the first three approved. New Jersey has been reactive with the changing federal hemp programs. In November 2018, New Jersey’s governor signed “New Jersey Industrial Hemp Pilot Program” signed into law. The statute authorized the New Jersey Department of Agriculture (“NJDA”)  to promulgate rules regulating the cultivation of industrial hemp in New Jersey for research purposes under the 2014 Farm Bill. Shortly after, President Trump signed the 2018 Farm Bill. New Jersey didn’t miss a step, enacting  the “New Jersey Hemp Farming Act” in August 2019 to repeal and replace the New Jersey Industrial Hemp Pilot Program.

The New Jersey hemp plan, as approved by the USDA, (the “Plan”) follows the USDA interim hemp rules closely (more on the federal hemp rules here). The majority of the rules in the Plan match the  standards set by the USDA, including the NJDA’s maintenance of information, providing requisite information to USDA, a procedure for testing for total THC (delta-9 THC and THCa) disposal procedures, violation provisions, and annual inspections.

In some aspects, the Plan goes further than the USDA interim hemp rules. The following examples illustrate how the Plan is more restrictive than the interim hemp rules:

• N.J.A.C. 2:25-2.2 requires a site modification fee any time a growing site is altered or added to an existing license so NJDA can submit accurate records to keep the USDA apprised of the status of all hemp producers and awards of all land being used to produce hemp.
• N.J.A.C. 2:25-2.2 prohibits public access to hemp, such as hemp mazes or any other recreational activity.
• N.J.A.C. 2:25-3.2 allows the Department to prohibit any hemp, seeds, plantlets or propagules for any reason. This allows NJDA to ban a particular strain or source for hemp if it is unreliable with regards to THC content.

In addition, the Plan issues handler and processor licenses. The interim rules don’t require that states issue licenses for these activities.  In addition, the Plan requires that “[a]ny person transporting hemp or hemp materials shall maintain, and provide upon request by law enforcement, proof of authorization to engage in the commercial sale of hemp[,] as well as a travel manifest that lists the origin, destination, product description, and date of transport. Third-party carriers are not required to be authorized hemp producers in order to transport hemp.” Again, the Plan is going beyond the interim rules with these transporation requirements.

New Jersey also requires that processors include labels that show the amount of oils or extract, the
percentage of THC, and the percentage of CBD extract contained in a hemp product, including Hemp CBD. Labels must also distinguish between hemp extract, CBD, or hemp oil. The New Jersey Hemp Farming Act defines those terms as follows:

“CBD” or “cannabidiol” is a phytocannabinoid found in cannabis which does not produce
psychoactive effects in users.

“Hemp Extract” means oil chemically extracted from hemp’s aerial plant part, such as seeds,
stalks or flowers, using chemical processes, containing a natural blend of phytocannabinoids, and
includes cannabidiol, or “CBD” oil.

“Hemp Oil” means oil obtained by physically pressing hemp seeds with a 3:1 ratio of omega-6 to
omega-3 essential fatty acids and does not include cannabidiol or CBD.

The Act also includes some interesting language on Hemp CBD products:

Notwithstanding any other law, or rule or regulation adopted pursuant thereto to the contrary, derivatives of hemp, including hemp-derived cannabidiol, may be added to cosmetics, personal care products, and products intended for human or animal consumption to the maximum extent permitted by federal law.

Retail sales of hemp products processed outside the State may be conducted in the State when the products and the hemp used in the products were processed and cultivated legally in another state or jurisdiction that has the same or substantially similar requirements for processing hemp products or cultivating hemp as provided [this Act].

Hemp products may be legally transported across State lines and exported to foreign countries in a manner that is consistent with federal law and the laws of respective foreign countries.

New Jersey seems to be saying that Hemp CBD products are allowed in the state, so long as that is legal under local, state, and federal law. That may mean that certain Hemp CBD products are not permitted under New Jersey law, considering that the FDA has repeatedly stated that Hemp CBD cannot be marketed as a drug or added to foods or dietary supplements.

This was one of our longer posts in the series, but it seems fitting considering that New Jersey is among the first states with an approved hemp plan. Keep an eye on our blog for further developments in the Garden State.

For previous coverage in this series, check out the links below:

A year ago, we discussed a shift in nomenclature for hemp-derived cannabidiol (“Hemp-CBD”) products. Many CBD companies have swapped the word “CBD” for the terms “hemp extract” and “full spectrum hemp” in hope of mitigating the risk of FDA and local enforcement actions.

As we previously explained, the main impetus behind this movement seems to have stemmed from a 2001 court decision regarding the status of lovastatin, a compound found in red yeast rice, which was historically used for healing purposes. The holding of this case suggests that a compound that has long been used as a food or dietary supplement for therapeutic reasons does not meet the definition of drug, and thus, may be lawfully sold and marketed in interstate commerce without the approval of the Food and Drug Administration (“FDA”). The caveat is that the compound in question must be found in its “naturally occurring form”.

Because hemp extract, which includes CBD and many other compounds, has been used for hundreds of years for its medicinal values, many in the industry have concluded that it could be lawfully sold and marketed in interstate commerce regardless of the FDA’s position on the sale and marketing of these products, specifically foods and dietary supplements. If you recall, the FDA approved Epidiolex, which contains CBD isolate (i.e., not occurring in its natural form). Nevertheless, the agency deems any CBD a drug ingredient, which means it cannot also be sold as a food or a dietary supplement without first being approved by the FDA.

Although there may be some solid parallels between Hemp-CBD and the red yeast rice case, this position is purely speculative in that it has yet to be litigated. Moreover, given the wide variety of hemp strains currently on the market, no one knows with certainty how to determine what the levels of the naturally occurring compounds would be. And even if we could make that determination, CBD companies would still be required to comply with marketing/advertising laws that would further complicate this issue.

Indeed, both federal and state laws impose some sort of labeling/packaging and marketing laws that require, in part, that the product label not be “misbranded” or “misleading.” Generally, under the Federal, Drug and Cosmetic Act (“FDCA”), a product is deemed misbranded if its labeling is false or misleading in any particular way or if it does not bear required labeling information.

So, if a company were to use the term “hemp extract” or “full spectrum hemp” when in fact the product does not contain the hundreds of compounds in their purest, most natural form, then said company would likely be found in violation of the FDCA. In addition, such marketing practice could put a company under the radar of the Federal Trade Commission (“FTC”), which works closely with the FDA on policing unfair or deceptive advertising in any medium.

There are also state marketing and labeling laws that apply. Many jurisdictions have adopted labeling and packaging rules that specifically pertain to Hemp-CBD products. For example, New Mexico is proposing new hemp rules that would require the inclusion of the content of CBD in milligrams on hemp finished products. Other states like Colorado mandate that labels list the CBD content found in a finished product only if CBD is added as an isolate.

While the industry’s inclination to mitigate the risk of enforcement actions against CBD products makes sense, it is worth pointing out that most enforcement actions are taken against CBD products that contain unfounded, egregious health claims or that are sold in jurisdictions that have expressly prohibited the sale of these products. Therefore, if a company makes the business decision not to use the term “CBD” on a product label, it should only do so: 1) if a company can corroborate that the substance found in the product is in fact “hemp extract” or “full spectrum hemp” (which is an unclear and challenging undertaking); 2) if the laws of the states in which the product is sold and marketed don’t specifically request the use of the term “CBD”; and 3) if no health claims are made about the product.

For more information on this issue, please contact our team of regulatory attorneys.

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 summarize a new state in alphabetical order. Today, we cover New Hampshire.

In 2019, the New Hampshire legislature passed HB 459, a piece of legislation aimed at establishing hemp cultivation in New Hampshire. HB 459 defines hemp as an agricultural product that may be cultivated in New Hampshire. The law requires that growers, processors, and “commercial traders” of hemp to be registered with the USDA. The law also established a committee to study the administrative mechanisms for permitting growing hemp in New Hampshire consistent with the 2018 Farm Bill, as well as the labeling requirements for hemp products sold in the state.

The committee was supposed to have reported its findings by November 1, 2019. However, it looks like that report has not been made as the committee was only relatively recently formed and thus the state is not yet fully open for hemp production. Just a few weeks ago, however, the legislature introduced HB 1658, which if passed will create a hemp registration program in Hew Hampshire. However, this is unlikely to pass for at least a few months as it goes through the normal legislative process, so for now the state is left with HB 459.

As to Hemp-CBD, a guideline issued by the New Hampshire Liquor Commission in 2018 and revised in June 2019 states that Hemp-CBD may not be added to foods or alcohol products in New Hampshire. It does not appear that any state agency has weighed in on other classes of products, but because the above guideline incorporates the Food and Drug Administration’s (“FDA”) position on Hemp-CBD foods, it’s safe to assume that the state would follow the FDA’s position on other products.

That said, in December 2019, the state legislature introduced HB 1581, a bill that would regulate the sale of Hemp-CBD products. The law would require that such products be manufactured in New Hampshire, would impose testing and labeling requirements on the processor, and would require that any hemp product produced in New Hampshire be registered with the state Department of Agriculture, Markets, and Food (“NHDAMF”). The law also gives NHDAMF, after consulting with the department of health and human services, the authority to regulate Hemp-CBD products.

For now, the law’s not well-settled in New Hampshire. If these new proposed laws pass, there will be big changes in the state. However, since these laws were only just introduced, it is difficult to anticipate whether they will pass or, if they do, what changes would be made in the legislative process.

Stay tuned to the Canna Law Blog for updates on New Hampshire Hemp-CBD. For previous coverage in this series, check out the links below: