Hands-On Approach
[dropcap class=”kp-dropcap”]C[/dropcap]annabidiol (CBD) may be one of the fastest-growing health and wellness products on the market, but numerous states are currently grappling with how to regulate it, particularly when it is derived from industrial hemp and therefore falls outside of the regulatory ambit of those states’ adult-use and medicinal cannabis programs.
As a little bit of background, the source of the CBD for purposes of this article matters. We’re talking only about CBD derived from industrial hemp, not CBD derived from cannabis, manufactured by licensed producers and sold in licensed retail stores. Apart from Washington’s I-502 cannabis regime, which is overseen by the Washington State Liquor and Cannabis Board, the state has an industrial hemp pilot program, pursuant to the 2014 Federal Farm Bill, which is overseen by the Washington State Department of Agriculture (WSDA). The state’s definition of “industrial hemp” is “all parts and varieties of the genera cannabis, cultivated or possessed by a grower, whether growing or not, that contain a THC concentration of 0.3 percent or less by dry weight.” Industrial hemp does not include plants of the genera cannabis that meet the state’s statutory definition of “marijuana.”
All processing of industrial hemp in Washington must be done in accordance with the state’s regulations, which means that industrial hemp processors must obtain a license to process or market industrial hemp in its unprocessed forms. However, Washington law prohibits the processing of “any part of industrial hemp, except seed, as food, extract, oil, cake, concentrate, resin, or other preparation for topical use, oral consumption, or inhalation by humans.” This prohibition on processing industrial hemp into CBD products for human consumption acts as an effective ban on CBD products intended for human consumption manufactured within the state.
But what about CBD products coming from other states? Colorado and Kentucky both have industrial hemp pilot programs pursuant to the Agricultural Act of 2014, referred to as the Farm Bill, and many licensed hemp growers are selling hemp to be processed into CBD products. And we’ve all seen CBD products available in a variety of places, including online. However, the WSDA prohibits the use of industrial hemp (except for the seeds) in topical and edible products containing industrial hemp, regardless of whether the industrial hemp was cultivated in Washington or pursuant to another state’s hemp program.
It’s important to understand some key definitions here. The State defines an “End Use Product” as a product that “contains publicly marketable hemp product and requires no further processing to be sold to a consumer. End use products include […] beverages, […] cosmetics, food, […] seed oil, [and] other products containing publicly marketable hemp products.” Pursuant to WAS 16-305-015, the “[p]ossessing, further processing, transporting, marketing and exchanging” of legally obtained, publicly marketable hemp products and End Use Products is outside the WSDA’s scope of enforcement except “for the limitation of THC content” and as provided under WAC 16-305-180 (which reiterates that processing of any part of the industrial hemp plant, other than the seeds, for human consumption is not allowed).
“This prohibition on processing industrial hemp into CBD products for human consumption acts as an effective ban on CBD products intended for human consumption manufactured within the state.”
The WSDA released an interpretive statement of these rules that expands the definition of “processing” to mean “use” as well, which likely means that the sale of hemp-derived CBD products intended for human consumption, regardless of the source of the industrial hemp, is not allowed in Washington. Of course, the Food and Drug Administration prohibits the addition of CBD, which it considers an active ingredient in an approved drug, to food products in interstate commerce, so any state-level prohibition seems redundant. But given the lack of legal clarity surrounding CBD, it’s no surprise to see more states taking regulation into their own hands.
