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, Colorado, Connecticut, Delaware, Florida, and Georgia. This week, we look at Hawaii.
Hawaii is one of the growing list of states that has created an industrial hemp cultivation pilot program. The Hawaii Department of Agriculture (“DOA”) launched the state’s hemp cultivation program and issued the state’s first license in June 2018. In May 2019, Hawaii’s legislature passed SB-1353, a bill that would have required DOA to establish a permanent hemp program under the 2018 Farm Bill, among other things—but the bill was subsequently vetoed and thus the program hasn’t been solidified. It’s important to note that DOA’s authority only falls on cultivation and not processing or retail sales, but DOA warns that processing could subject a person to different sets of regulations or different legal authorities.
But if you thought Hawaii would be friendly to Hemp CBD products, think again. Sort of like California, a May 2019 press release by the Hawaii Department of Health (“DOH”) states that the sale of CBD infused-products is unlawful in Hawaii. DOH’s Food and Drug Branch echoes this press release on its website:
- Products containing CBD are not generally considered safe and there may be potential health risks associated with them.
- It is illegal to add CBD to food, beverages and cosmetics that are manufactured, distributed and sold in Hawaii.
- CBD may not be sold as a “dietary supplement.”
- CBD may not be marketed by asserting health claims because that would constitute prohibited misbranding or false advertising.
- CBD is the active ingredient in an FDA-approved prescription drug. Therefore, it cannot be put into food, beverages and cosmetics, sold as a drug without a prescription, or marketed as a “dietary supplement.”
These statements by the DOH make pretty well clear that they are following the federal Food and Drug Administration’s (“FDA”) guidelines (by repeatedly citing/referring to them), but they also cite Hawaii’s food, drug, and cosmetics laws, similar to what California has done. In fact, Hawaii appears to have gone further than both the FDA and California in prohibiting Hemp-CBD in cosmetics. Hawaii’s position on Hemp-CBD is one of the strictest in the nation as the sale of Hemp CBD products such as foods, beverages, cosmetics, dietary supplements, unapproved drugs, or any other kind of Hemp CBD product that makes health claims, appears to be unlawful in Hawaii.
The bottom line is that the sale of many different kinds of Hemp CBD products in Hawaii appears to be unlawful, at least according to the DOH. Anyone who follows this blog knows that these laws are fluid and changing rapidly, so stay tuned to the Canna Law Blog for further developments.