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, Arizona, Arkansas, California and Colorado. This week we turn to Connecticut.
Connecticut very recently passed Public Act No. 19-3 (“S.S.B. No. 893”), which directs the state Department of Agriculture (“DOAG”) to implement an agricultural pilot program under the 2014 Farm Bill to enable the cultivation and processing of hemp until the state plan is approved by the U.S. Department of Agriculture (“USDA”). Once the state plan is approved by the USDA, the research program will expire and DOAG will begin regulating the commercial production of hemp and hemp products, pursuant to the 2018 Farm Bill.
Section 1 of S.S.B. No. 893 provides that hemp has the same meaning as that found in the 2018 Farm Bill and defines “hemp products” as “products with a delta-a tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis derived from, or made by, the processing of hemp plants or hemp plant parts.”
Only growers and processors of hemp and hemp products that are not consumable (i.e., hemp products containing no more than 0.3 percent THC not intended for human ingestion, inhalation, absorption or other internal consumption) are required to obtain a license from the DOAG. In addition, DOAG licensed growers and processors must acquire certified seeds and are strictly prohibited from transporting hemp containing more than 0.3% THC to any location not listed on the licensee’s application.
In order to “manufacture, handle, store and market hemp” for human consumption, one is required to obtain a license from the Department of Consumer Protection (“DCP”) and must (1) satisfy specific testing procedures; (2) comply with the Federal Food, Drug and Cosmetic Act; and (3) not make any health claims promoting the therapeutic value of their products.
Note that hemp products that have been deemed Generally Recognized As Safe (“GRAS”) by the Food and Drug Administration (“FDA”) that are (1) marketed for the uses described in the FDA GRAS notices, (2) manufactured in a way that is consistent with the notices, and (3) meet the listed specifications in the notices, may be manufactured in the state without a DCP manufacturers or hemp consumable license.
As of the date of this post, the DCP has yet to release rules on the manufacturing, processing, storing and marketing of hemp for human consumption, but it is clear from its FAQs that the CDP is deferring to the FDA guidelines when dealing with CBD-infused foods and dietary supplements.
So while Connecticut has shown a friendly attitude towards hemp and hemp products (the state was already differentiating hemp from marijuana, even before the enactment of S.S.B. No. 893), the state is also putting restrictions on the manufacture, sale and distribution of CBD-infused foods and dietary supplements. This means that enforcement actions may soon ensue.