In the past few weeks, many opinions on the sale, marketing and transportation of hemp and hemp-derived CBD-infused (“Hemp-CBD”) products have been released by federal agencies, including the U.S. Food and Drug Administration (“FDA”), the U.S. Department of Agriculture (“USDA”), the U.S. Postal Service (“USPS”), and the Transportation Security Administration (“TSA”). While we have written on these agency policies individually, we thought it would be helpful to recap these opinions under one blog post.
FOOD & DRUG ADMINISTRATION
Since the enactment of the 2018 Farm Bill, the FDA has expressly opined that the sale and marketing of CBD-infused food and dietary supplement in interstate commerce is unlawful because CBD has already been approved as a drug, and thus, cannot be concurrently sold or marketed as a food or dietary supplement. Nevertheless, the substantial public interest in accessing CBD in food and dietary supplements has forced the FDA to explore potential regulatory pathways for the lawful marketing of these products. On May 31, the agency held a public meeting that offered CBD stakeholders a platform to share feedback and experiences and provided the agency with information related to the cannabis-derived compound. In addition, the agency created a working group that is evaluating the regulatory frameworks for non-drug uses of CBD. The agency anticipates updating the public about its progress later this summer.
U.S. DEPARTMENT OF AGRICULTURE
On May 28, 2018, the USDA issued a non-binding opinion letter in which the agency explained, in part, that states and Native American tribes may not prohibit the interstate transportation or shipping of hemp or hemp products lawfully produced under the 2014 Farm Bill. Specifically, the USDA reasoned that state and tribe interference is prohibited pursuant to the 2018 Farm Bill, which provides that “[n]othing in this sections prohibits the production of hemp in a State or the territory of an Indian tribe, for which a state or Tribal plan is not approved under this section, if the production of hemp is in accordance with [. . .] other Federal laws [i.e., the 2014 Farm Bill]” (Emphasis added). Note that while the USDA letter is non-binding, this agency policy strongly supports the position that states and tribes should not interfere with lawfully grown and processed hemp shipments.
U.S. POSTAL SERVICE
In March the USPS released guidance on mailing Hemp-CBD products, which it clarified at the beginning of June. Pursuant to its most recent guidelines, the USPS authorizes the mailing of Hemp-CBD products so long as (1) the products contain no more than 0.3 percent THC; (2) the mailer complies with all applicable federal, state, and local laws that pertain to hemp production, processing, distribution and sale; and (3) the mailer retains records establishing compliance with such laws, for no less than 2 year after the date of mailing. The second prong suggests that mailing Hemp-CBD food and dietary supplement would not be lawfully mailable given that these products violate the Food, Drug, and Cosmetic Act (i.e., the laws enforced by the FDA); however, this issue has yet to be administratively litigated or clarified by the USPS.
TRANSPORTATION SECURITY ADMINISTRATION
Back in May, we wrote about the confusing guidelines issued by the TSA on traveling with CBD-infused products. Shortly after our post was published, the agency revised its website, which now provide that:
Marijuana and certain cannabis infused products, including some Cannabidiol (CBD) oil, remain illegal under federal law except for products that contain no more than 0.3 percent THC on a dry weight basis or that are approved by FDA. (See the Agriculture Improvement Act of 2018, Pub. L. 115-334.)” (Emphasis added).
On its face, this policy suggests that the TSA will authorize travelers to carry any CBD-infused product that meets the federal THC concentration limit of 0.3 percent, even if the product is deemed unlawful by the FDA. However, travelers should understand that traveling with these products remains risky for two reasons: (1) “[t]he final decision rests with the TSA officer on whether an item is allowed through the checkpoint”; and (2) if it unclear how TSA would test products to verify their THC content. As far as we know, the TSA’s testing procedure is solely geared towards determining whether THC is present, not to measure its exact concentration.
To conclude, while the USDA, the USPS, and the TSA have all released guidelines that seem to legalize the transportation and shipping of Hemp-CBD products, these policies are drafted too broadly to completely shield carriers, mailers and travelers from enforcement actions. We anticipate – and sincerely hope – that the transportation of these products will become clearer and easier once the FDA implements a regulatory framework for their sale and marketing.