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, Alaska and Arizona. This week we turn to Arkansas.
The Arkansas State Plant Board (“ASPB”), which is part of the state Department of Agriculture, has been overseeing the state’s hemp program since August 2018.
The ASPB rules require a license to cultivate, process, distribute or market raw hemp and industrial hemp products. “Industrial hemp products” or “hemp products” means “products derived from, or made by, processing industrial hemp plants or plant parts, including without limitation: (A) Certified seed for cultivation if the seeds originate from industrial hemp varieties; (B) Cloth; (C) Cordage; (D) Fiber; (E) Food; (F) Fuel; (G) Paint; (H) Paper; (I) Particleboard; (J) Plastics; and (K) Seed, seed meal, and seed oil for consumption.”
The rules also provide for “publicly marketable hemp product” which is differentiated from “industrial hemp products” and refers to “a hemp product that meets one or more of the following descriptions:”
(a) the product does not include any living hemp plants, viable seeds, leaf materials, floral materials, or decarboxylated delta-9-THC content above 0.3 percent; and does include, without limitation, the following products: bare stalks, bast fiber, hurd fiber, nonviable roots, nonviable seeds, seed oils, and plant extracts (excluding products containing decarboxylated delta-9-THC above 0.3 percent).
(b) the product is CBD that was derived from industrial hemp, as defined in this regulation; or
(c) the product is CBD that is approved as a prescription medication by the United States Food and Drug Administration.”
Publicly marketable hemp products are excluded from the ASPB’s definition of “cannabis” as well as from the ASPB’s explanation of who must apply for a license to grow or process industrial hemp. Accordingly, no license or permit is required by the state agency to sell or deliver Hemp-CBD products in the state.
Moreover, on March 18, 2019, Arkansas removed Hemp-CBD that contains no more than 0.3 percent THC on a dry weight basis and that is not approved as a drug by the FDA from its list of controlled substances. In doing so, the state removed all criminal and civil penalties for possession hemp-derived CBD products in Arkansas, and thus, authorized the sale of these products regardless of continued federal prohibition.
Consequently, it is safe to say that Arkansas is one of the safest and most hemp-friendly states in the country.