§12.3 State Regulation of Cannabis-Derived Ingestible Products, Including Hemp-Derived Supplements, CBD Containing Products, and THC Containing Products
| Jurisdiction | United States |
| Publication year | 2022 |
§12.3 State Regulation of Cannabis-Derived Ingestible Products, Including Hemp-Derived Supplements, CBD Containing Products, and THC Containing Products
§12.3.1 Overview
As certain aspects of states' laws and federal laws regarding cannabis-derived products are in apparent contradiction, and laws among the various states vary from recreational use to strict non-permissible use. Regarding hemp, all states have established laws and regulatory authority commensurate with federal law, that being the cultivation at least for research purposes. Hemp, also known as industrial hemp, mostly adheres to the federal definition, that being part of the plant Cannabis sativa L. having a THC concentration of not more than 0.3%. Most states have established laws permitting commercial sales and personal possession of hemp, while several states have limited the type of products wherein hemp can be introduced into and subsequently distributed. All states have removed hemp as a scheduled substance; however, the smell of hemp, which mirrors marijuana, has resulted in detainment of drivers and charges.
"Smokable hemp" has been the subject of litigation in a few states, with some permitting and not permitting; certain have held that limitations on "smokable hemp" is commensurate with federal law.
THC as used herein refers to delta-9-tetrahydrocannabinol. THC has been held to be a scheduled substance in some states as well as an unscheduled substance in other states, with scheduling ranging from I to IV. The amount of THC present has been a determining factor for permissible and non-permissible cannabis-derived ingestible products, with the federal cut-off limit of "not more than 0.3%" being widely applied. The origination of THC, i.e., "natural occurring" or "synthetic" has been debated in several states, with "synthetic" THC usually classified as scheduled and thus impermissible.
CBD, or cannabidiol, has been the subject of legislation. Like THC, the origination of CBD has been important. CBD originating from hemp, i.e., having a THC concentration of not more than 0.3%, has led to permissible distribution in some states. Other states adhere to more strict federal FD&C act standards and deem the marketing of CBD to be impermissible. Apparent conflict between federal and states' laws thus appears more often with the cannabis-derived CBD product. Several courts have noted the apparent contradiction and have stayed judgment, awaiting Food and Drug Administration guidance with regard to the marketing and labeling of CBD products.
The below state summaries are not intended as a full comprehensive guide to the processes for legally cultivating, manufacturing, and distributing cannabis-derived ingestible products in a state. Rather, it is intended to give an overview of a state's regulatory framework with regard to key cannabis-derived materials that may comprise dietary supplements: hemp, THC, and CBD. The overview dates from the 2018 to present, as 2018 is the enactment date of the Agriculture Act of 2018 ("Farm Bill 2018"), which fully removed hemp as a scheduled drug. Primary materials, including statute, regulations, and case law (when available) are used in providing the overviews. Whereas "marijuana" and "medical marijuana" are major cannabis-derived products of discussion, as they are usually not used as ingredients in dietary supplements, they have been deemed outside the scope of this manual.
§12.3.2 The States and Territories
Alabama
Under Alabama code, "industrial hemp" is regulated as an agricultural crop and is defined as a part or variety of Cannabis sativa, "whether growing or not" that possesses THC at an amount of not more than 0.3% on a dry-weight basis.70 "Industrial hemp" is further referenced as "hemp."71 Hemp agribusiness has been permitted under Alabama law, with allowance given for "production, development, and commercialization of hemp products."72
CBD, or cannabidiol, is defined as a "nonpsychoactive" cannabinoid compound, including synonymous terms, that has a THC level of "no more than three percent relative to CBD."73 Alabama law makes it an affirmative and complete defense for possession of CBD when the holder has a "debilitating medical condition" or it is held by a parent or guardian of a minor who has a debilitating condition.74
Alabama case law relating to hemp or CBD is rather scant, with cannabis-related matters usually falling in under criminal complaints.75
Alaska
Alaska law allows the growth, possession, transport, selling, and buying, among other permissive activities, of "industrial hemp."76 "Industrial hemp" is considered an agricultural crop, which may be produced by individuals following registration with the appropriate state department. "Industrial hemp" whose THC level falls between 0.3% and 1% may be retained and reconditioned.
Alaska law further excludes hashish, hashish oil, and natural and synthetic THC from the classification of "marijuana."77 "Cannabidiol oil" is defined as an extract containing not more than 0.3% THC. "Industrial hemp" must be made available at a THC amount at or below 0.3%.78 Industrial hemp or cannabis-derived product over 0.3% THC is subject to being declared a "public nuisance," and possible destruction.79
Arkansas
Under Arkansas law, "cannabis" is defined as parts of a plant cannabis.80 "Publicly marketable hemp products" are not included as cannabis. Id. "Marihuana" is classified as a Schedule VI substance,81 with "marijuana," defined under Arkansas law, as being any art of the cannabis plant that contains THC, excluding, among others, mature stalks, oil made from the seeds, and hemp-derived cannabidiol.82 Hemp-derived cannabidiol must contain no more than three-tenths of 1% (0.3%) of THC on a dry-weight basis.83
Industrial hemp may be legally cultivated and distributed in Arkansas, subject to license.84 "Industrial hemp" is defined as the plant Cannabis sativa, and parts thereof, having a THC concentration "of no more than that adopted by federal law under the Agricultural Marketing Act . . . ."85 Any Arkansas laws pertaining to industrial hemp are limited by federal laws in the event of a legal conflict.86
Arizona
Under Arizona law, "industrial hemp" is removed from the definition of marijuana, whereas cannabis falls within the definition of marijuana.87 Possession of marijuana is deemed an offense,88 excluding permissible use and possession.89 "Industrial hemp" itself is defined as the plant Cannabis sativa L. and parts thereof, having THC concentration of "three-tenths percent" on a dry-weight basis.90 This allowable THC concentration would apparently be more than allowed under the federal level.91 Industrial hemp must be derived from authorized hemp seed.92 Commercial growth, marketing, and cultivation of hemp is allowed in Arizona provided it is allowed under federal law.93 The District Court of Arizona has also narrowed the penalties existing under the previous Controlled status of hemp, to correspond to the modified federal status.94
Regarding cannabidiol, the compound may be "prescribed" provided it is approved by the U.S. Food and Drug Administration and is rescheduled by the U.S. DEA.95
California
California has a detailed legal environment regulating cannabis-derived ingestible products.
"Industrial hemp," aka "hemp" as defined under California law is an agricultural product derived from the Cannabis sativa L. plant having a THC level of not more than 0.3% on a dry-weight basis.96 California's regulation of hemp corresponds to the federal government's regulation of hemp.97 Hemp is explicitly removed from the definition of cannabis.98
Hemp may be added to dietary supplements and not be deemed to adulterate the dietary supplement99 —as "hemp" under California law is apparently broader than the three federally approved hemp derivatives, "unadulterated" dietary supplements containing hemp include more products than "unadulterated" dietary supplements under the FD&C Act.
California has performed an extensive legal framework for CBD, including establishing a department specific to cannabis100 and defining various items relating to and products derived from CBD.101 When faced with the question of whether cannabidiol (CBD) products may be legally sold, the district courts in California have often stayed a substantive decision on the basis of awaiting FDA guidelines relating to CBD.102 California has apparently anticipated the permissive sale of CBD at the federal level by giving automatic permissive sale of CBD in California upon CBD being removed as a Scheduled I drug.103 California has also made a distinction between natural cannabinoid and synthetic cannabinoid, with selling or possession of synthetics deemed impermissible.104 Permissible use of natural cannabinoid is supported by the current regulation not encompassing CBD derived from "industrial hemp."105
Colorado
"Marijuana" includes parts of the plant Cannabis sativa L., excluding, among others, fiber from stalks, and marijuana concentrate.106 Marijuana concentrate includes tetrahydrocannabinols.107
Marijuana is regulated under Colorado Revised Statute entitled "Colorado Marijuana Code."108 "Retail marijuana" is defined as marijuana that is cultivated and distributed for retail marijuana business.109 The term "regulated marijuana" encompasses both medical marijuana and retail marijuana.110
Retail marijuana stores may distribute (i.e., "transfer") industrial hemp product to consumers, subject to regulations.111 Retail marijuana may additionally cultivate marijuana, but a retail marijuana cultivation license is required.112
Industrial hemp means a plant from the genus cannabis, having a THC concentration of not more than three-tenths of 1% on a dry-weight basis.113 Industrial hemp products include products intended for human consumption, that can include cannabinoids, among others.114 For purposes of taxation, retail marijuana does not include industrial hemp.115 It is permissible to...
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