By Daniel Shortt, Attorney @ Harris Bricken
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, and Delaware. This week we head south to Florida.
Senate Bill 1020 (“SB 1020”) went into effect on July 1. SB 1020 provides for the creation of a plan for regulating the cultivation of hemp, pursuant to the 2018 Farm Bill, and legalizes the retail sales of hemp extract. “Hemp Extract” means “a substance or compound intended for ingestion that is derived from or contains hemp and that does not contain other controlled substances.” The Florida Department of Agriculture and Consumer Services (“FDACS”) will oversee Florida’s hemp program. A license from FDACS is required to cultivate hemp. FDACS is not currently issuing cultivation licenses. Cultivators can only obtain hemp seeds from “cultivars certified by a certifying agency or a university conducting an industrial hemp pilot project” under Florida’s prior industrial hemp agricultural pilot program.
With regards to retail sales, Hemp Extract may only be sold in Florida if the product:
(a) Has a certificate of analysis prepared by an independent testing laboratory that states the extract is the product of a batch tested by the lab, containing less than 0.3 percent THC and free of unsafe contaminants; and
(b) Is distributed or sold in packaging that includes the following:
- A scannable barcode or quick response code linked to the product’s certificate of analysis;
- The batch number;
- The Internet address of a website where batch information may be obtained;
- The expiration date;
- The number of milligrams of hemp extract; and
- A statement that the product contains a total delta-9 tetrahydrocannabinol concentration that does not exceed 0.3 percent on a dry-weight basis.
FDACS drafted proposed rules pursuant to SB 1020 and the public comment period for those rules ended on July 19. For more information on the rulemaking process, check out FDACS hemp FAQs which addresses “What happens after the public comment period ends?” The proposed rules cover a wide range of topics but below are a few highlights.
Hemp-CBD in Food. The proposed rules define “Hemp Food Establishment” as an establishment “manufacturing, processing, packing, holding, preparing, or selling Food consisting of or containing Hemp Extract at wholesale or retail.” Hemp Food Establishments must obtain a food permit from FDACS and must submit a waste disposal plan to FDACS “before manufacturing, processing, packing, holding, preparing, or selling Food constituting of or containing Hemp Extract.” FDACS has more information on retail hemp food establishment permits here. Food containing hemp or hemp extracts must come from an “Approved Source,” which means “[f]ood manufactured, processed, packaged, labeled, or held in this state under sanitary conditions as demonstrated by meeting [FDACS’s] inspection requirements or evidence the source is in compliance with a foreign, federal, state, local, territorial, or tribal jurisdiction’s food safety regulatory inspection program.” Hemp Extracts intended for human ingestion must come from a crop intended to be used in the food supply chain. The proposed rules also list contaminants and residual solvents that cannot be present in hemp-food. There are also specific rules for Hemp Extracts used in dairy products and frozen desserts and used in pet foods and treats.
Hemp-CBD in Cosmetics. The proposed rules cover Hemp-CBD in food in great detail but are fairly light on Hemp-CBD in cosmetics, stating only that Hemp Extracts used for “bodily application” is not food and is subject to the Florida Drug and Cosmetic Act.
Transporting hemp. Drivers transporting raw hemp in Florida must have “a bill of lading or proof of ownership, certificate of inspection, documentation showing the name, physical address, and license number of the originating licensed cultivator, and the name and physical address of the recipient of the delivery[.]” FDACS will issue a Permit to Import Hemp and that permit will be required to transport raw hemp or hemp biomass that originates in other states into Florida. Imported hemp must also be accompanied by “proof of origin and a phytosanitary certificate of inspection issued by a state or country plant protection governmental agency. ”
Florida is the third-largest state by population, so it is a potentially huge market for Hemp-CBD. It appears that the FDACS has put a lot of thought into this program, from cultivation to consumption. It will be interesting to see how things play out once Florida’s hemp program is up and running.