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Hemp-CBD Across State Lines: Indiana

indiana hemp cbd cannabis

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 turn to Indiana.

The Office of Indiana State Chemist (“OISC”) regulates hemp cultivation activities. Currently, the OISC is allowing applications for hemp researchers but expects to allow commercial cultivation applications in 2020 (absent a change in applicable laws or regulations) in light of the 2018 Farm Bill’s allowance of hemp production programs and a series of laws and regulations in Indiana. Pursuant to these OISC FAQs, the final rules for the 2020 application process are still being worked out, and the state hopes that the first round of commercial hemp crops will be planted next year. The FAQs also state that hemp seeds can be imported from other states and that the license types that will eventually be issued will be for Growers, Handlers, and Researchers.

Perhaps surprisingly, Indiana has some of the most robust Hemp CBD requirements of any U.S. state. Indiana’s legislature passed SB-52, allowing the sales of FDA-approved Hemp CBD products, or “low THC hemp extract” that complies with Indiana law effective in 2018. These requirements are broad and require independent lab testing with a passing certificate of analysis, and require products to have comprehensive labels with scannable QR codes linking to even more comprehensive information.

SB-52 doesn’t list each and every kind of Hemp CBD product that may be sold, but subsequent legislation has clarified the state’s position on certain products. Earlier this year, the state passed SB-516, which among other things, makes clear that smokable hemp isn’t a permitted product in Indiana. “Smokable hemp” is defined broadly and arguably includes both flower products and vape products.

Stay tuned to the Canna Law Blog for developments on hemp and Hemp CBD in Indiana. For previous coverage in this series, check out the links below.

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Will California Get a Hemp Social Equity Program?

california hemp social equity

As states across the country develop regulated cannabis programs, more and more are incorporating social equity programs. Illinois’ new adult-use cannabis law, for example, made waves for its broad social equity program. Here in California, cannabis social equity is not a central part of the state-level regulations, but many of the larger cities throughout the state have adopted and are in the process of implementing comprehensive social equity programs: for example, Los Angeles, San Francisco, and Long Beach. Others will probably follow in the future.

But the same isn’t really true for California hemp or hemp-derived cannabidiol (“Hemp CBD”). California hasn’t really made any progress on adopting hemp social equity programs, probably because of the murky legality of hemp to start. Most Hemp CBD products are “illegal” according to the California Department of Public Health, and . AB-228—the bill that may change that, if it ever moves forward—won’t really do anything to create any kind of social equity benefits for Hemp CBD manufacturers or sellers. California’s existing hemp cultivation law—the California Industrial Hemp Farming Act (or “CIHFA”, which I’ve written about here)—is half a decade old and essentially is limited to regulating very limited aspects of cultivation.

The CIHFA is not really geared towards the easy creation of a social equity program for hemp farmers. It doesn’t necessarily require city or county permitting, but instead requires that commercial cultivators file simple registration forms with county agricultural commissioners and pay a pretty nominal fee. This is in contrast to the state’s cannabis law—the Medicinal and Adult Use Cannabis Regulation and Safety Act and its corresponding regulations (or “MAUCRSA”)—which requires local approval and thus creates the opportunity for cities to fill the gap with their own individualized social equity programs. Because there’s currently not an equivalent licensing program for hemp, and because the state laws on point don’t address social equity, we just aren’t seeing that happen.

Moreover, a possible amendment to the CIHFA (SB-153) will actually hurt the chances of the state getting a social equity program that looks anything like cannabis social equity programs. One of the current provisions of SB-153 states:

Any person convicted of a felony relating to a controlled substance under state or federal law before, on, or after January 1, 2020, shall be ineligible, during the 10-year period following the date of the conviction, to participate in the industrial hemp program.

This provision is a bit vague and we don’t yet know how it will be implemented—for example, what the state means by “participation” is not yet clear so we don’t know if that would bar someone from being an owner of a hemp farm, or even being employed by one. It is also similar to exclusionary language found in the federal 2018 Farm Bill, which bars “any person convicted of a felony relating to a controlled substance under State or Federal law.”

We wrote about the discriminatory impact of that language here. Under the similar SB-153 language, if someone had a controlled substances conviction—likely even a cannabis conviction anywhere in the U.S.—within 10 years of attempting to participate in the industrial hemp program, they would be ineligible. This is anathema to social equity programs which in many cases will give assistance to persons were convicted for possession of controlled substances (i.e., Los Angeles’ program). The upshot is that if a locality were to adopt a social equity program, it may not be able to use prior convictions as a basis for eligibility and would have to design it a lot differently.

At the end of the day, it’s too early to tell whether the state will bring social equity to hemp. We’ll report back on any updates to this, so stay tuned to the Canna Law Blog.

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Cultivating Wellness

Green cannabis leaf in soft focus on an sunset-colored background.

Who is using CBD and why?

Despite the huge public interest in CBD products, and an endless stream of media stoking that fire, there have been limited efforts to figure out exactly how and why people are using this darling compound of the cannabis world.

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Hemp-CBD Across State Lines: Illinois

illinois hemp cannabis

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’ve covered Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii and Idaho. Today we turn to Illinois.

Overview. Since 2016, Illinois has limited the cultivation of industrial hemp by the Illinois Department of Agriculture (“IDA”) and institutions of higher learning for research purposes only. However, on August 26, 2018, Governor Bruce Rauner signed SB 2298, which expanded the state’s industrial hemp regulations to cover commercial activity. SB 2298 updated Illinois’ industrial hemp laws to allow individuals and entities to cultivate hemp by registering with the IDA and removed industrial hemp from the definition of cannabis.

Earlier this year, the IDA adopted temporary rules under SB 2298. Under the rules, “Industrial Hemp” means

the plant Cannabis sativa L. and any part of that plant, whether growing or not, with a delta- tetrahydorcannabinol (THC) concentration of not more than 0.3% on a dry weight basis that has been cultivated under a license issued under the Act or is otherwise lawfully present in this State and includes any intermediate or finished product made or derived from industrial hemp.

Production of Hemp and Hemp-CBD Products. Pursuant to Illinois law, only licensed growers and processors may sell or transfer living hemp plants or viable hemp seeds to (1) other IDA licensees, or (2) others outside of Illinois so long as the sale is authorized by a state agency in the destination state.

The IDA also permits the sale and transfer of “stripped stalks, fiber, dried roots, nonviable seeds, seed oils, floral and plant extracts (excluding THC in excess of 0.3%) and other marketable hemp products to members of the general public, both within and outside the State of Illinois.” Note that neither the bill nor the IDA rules define “marketable hemp products.”

However, Section 25 of SB 2298 provides the following provision:

Nothing in this Act shall be construed to authorize any person to violate federal rules, regulations, or laws. If any part of this Act conflicts with a provision of the federal laws regarding industrial hemp, the federal provisions shall control to the extent of the conflict.

Accordingly, because there is no permissive language that allows for Hemp-CBD products and because of Section 25, the sale of these products is illegal at worst, and unregulated at best.

In addition, only registered processors can process Hemp-CBD grown under the program. However, nothing in SB 2298 nor the IDA rules expressly prohibit the introduction of hemp products lawfully processed under another state plan.

Possession. Pursuant to SB 2298, “[n]othing in this Act shall alter the legality of hemp or hemp products that are presently legal to possess or own.” Consequently, the possession of Hemp-CBD products seems limited to those approved by the FDA or that meet the standards set by IDA rules (i.e., containing no more than 0.3% THC and that satisfy other requirements).

Transportation. Only a licensed grower or registered processors may transport hemp so long as the hemp contains no more than 0.3% THC. Note that the IDA rules state that the transportation of Hemp-CBD products is not restricted after sold to a member of the public.

Marketing or Advertising Restrictions. As of the date of this post, the state has not enacted regulations governing the marketing or advertising of Hemp-CBD products.

Bottom Line. Although the production and sale of Hemp-CBD products isn’t clearly authorized or restricted, Illinois is authorizing the cultivation of the crop and has not taken any enforcement actions against these products. For these reasons, Illinois should be considered a hemp friendly state. That being said, there is a possibility that things may change upon the adoption of final rules by IDA.

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Navigating the Use of CBD Oil as a Food Claim, September 10 and 11: Harris Bricken Presents!

cbd fda food claims

This Wednesday, September 11, our own Vince Sliwoski will present at a marquee food industry event in Chicago. The topic will be “Navigating the Use of CBD Oil as a Food Claim.” This stand-alone presentation will occur alongside presentations from regulatory counsel at Whole Food Markets, Sargento Foods, Nestle USA, Non GMO Project and the USDA, to name a few. A handful of our law firm’s national retail and distribution clients will also be making the trip. For the conference landing page, including registration and agenda, go here.

Over the past year or two, we have seen a tremendous uptick in the manufacture, distribution and sale of hemp-CBD products. This trend continues to accelerate despite FDA’s clear position that these products are unlawful under the Food, Drug and Cosmetics Act (“FD&C Act”). And, while the FDA has not been very active in enforcing this position, it recently dispatched another highly-publicized warning letter regarding hemp-CBD products on offer at CVS, one of the nation’s largest retailers.

As we have covered extensively on this blog, the manufacture and distribution of hemp-CBD products under the 2014 and 2018 Farm Bills is a challenging area of law, and incredibly dynamic. The FDA is currently considering whether there is any path forward for these products under its reading of the FD&C Act, while USDA simultaneously writes rules that will affect the industry. The approaches taken by states and even local jurisdictions have been all over the board.

Despite all of the uncertainty and hassle, though, businesses and consumers are moving ahead. Today, you can buy CBD food products (and beverages, topicals, supplements, and pet products) at physical and online retailers throughout the United States. We don’t see that ending anytime soon.

We are honored and excited to have been asked to speak at this leading industry event on the issue of food claims and CBD, and we will continue to serve as thought leaders and advisers on this and related matters. For more on these issues, check out our tagged archives of hemp and FDA blog posts. Otherwise, best of luck to Vince in Chicago and we hope to see some of you at the event.

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Hemp Testing

Altitude Consulting is not only a hemp testing laboratory, but an organization trusted to consult within the industry. Home growers and commercial farms around the world recognize that EPA based methodologies assure the most accurate and consistent data. Give us a call or bring us a hemp potency, residual solvent or terpene profile sample and see the difference.

Altitude Consulting
Denver’s most effective cannabis testing company.