The landmark passage of the 2018 Farm Bill is frequently said to have “legalized” hemp. Indeed, the Farm Bill removed hemp, defined in the federal Controlled Substances Act as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol (commonly known as THC) concentration of not more than 0.3 percent on a dry weight basis.”
But while the DEA may no longer criminally prosecute those who grow, process, extract, sell, or otherwise use or possess hemp merely for such activities, the government is still battling the hemp industry on several fronts. The same day the Farm Bill was signed into law, the FDA issued a statement making clear that the FDA considers the sale of cannabidiol (CBD) for animal or human consumption, in any form, a violation of the Federal Food, Drug, and Cosmetic Act unless such product has been approved by the FDA’s rigorous drug approval process. Despite the nationwide proliferation of CBD products touted for a wide array of benefits for both humans and animals, the FDA has approved only one such product, Epidiolex. Sales of all other CBD products remain illegal. Although the FDA has yet to aggressively enforce its policy, it could crack down at any moment.
States are already taking aggressive measures against the hemp industry. In both Oklahoma and Idaho, authorities seized large commercial shipments of hemp, claiming such shipments were actually marijuana. Although the Farm Bill specifically authorizes interstate transfer of hemp, some states have seized on the gray area about what actually constitutes hemp. THC content (which must be less than 0.3% to qualify as hemp) varies throughout a plant’s life, and even throughout portions of the plant itself. So even if an entire homogenized crop would test below the THC limit, states could nonetheless launch prosecutions based on certain handpicked samples that test above the 0.3% limit. These seizure cases may have precedential effects for the standardization of testing procedures for hemp.
And what if a crop ultimately does test hot? Can a portion be saved, or must the entire crop be destroyed? Although Colorado provides limited remediation procedures for crops that are still less than 1.0% THC, those procedures do not guarantee exemption from serious felony charges, particularly if the crop is being transported to another state.
Some states, like Colorado, have embraced the use of hemp derivatives like CBD as a food additives or supplements. But other states, including California, New York, Ohio, and Maine, have specifically prohibited CBD products intended for human consumption. This inconsistent regulation is particularly precarious for wholesalers and online retailers, who may not completely control where their products ultimately wind up.
Altogether, the emerging hemp industry currently faces a complicated legal landscape, where even law enforcement sometimes fails to keep up with rapidly changing laws. As such, it is crucial for hemp industry participants to have competent legal counsel, not only for transactional and business purposes, but also for regulatory compliance and, if necessary, administrative or even criminal defense.
Ken Eichner and his team at the Eichner Law Firm, which includes Colorado Bar Association Cannabis Law Section Co-Vice Chair Jeff Wilson, have extensive experience and demonstrated success protecting their clients against government overreach, whether it be civil penalties, criminal charges, administrative complaints, licensing violations, tax issues, seizures, or attempted forfeitures. Many attorneys courting the hemp industry are not litigators by trade. If you work in the hemp industry and are not 100% sure that your attorney is ready, willing, and able to aggressively defend you and your business, we encourage you to contact us today.
Disclaimer: The information in this blog is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this blog should be construed as legal advice from The Eichner Law Firm or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this blog should act or refrain from acting on the basis of any information included in, or accessible through, this blog without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.