Officials are advising Michigan residents that food and drinks infused with CBD oil aren’t quite legal yet.
“Being decriminalized and being legal are two different things,” said Josh Colton, a Michigan lawyer who recently started his own practice, The Hemp Law Group.
Cannabidiol — or CBD– oil is a hot product in the alternative remedy market. It’s extracted from marijuana or hemp, but doesn’t produce the psychoactive effects of marijuana because it contains little THC. Walgreens and CVS recently started carrying CBD products at certain stores nationwide, and Martha Stewart recently announced she would be launching her own CBD product line.
After Proposal 1 passed in Michigan legalizing adult-use marijuana and industrial hemp — and the 2018 U.S. Farm Bill legalized hemp nationwide — there has been a proliferation of CBD products in the state.
“The writing seems to be clearly on the wall that CBD and all the products associated with hemp will become mainstream,” Colton said. “Generally across the country there’s not been an effort to enforce on CBD. There’s no serious health risk; the strongest claims against it is that it’s pseudo-science and people selling snake oil. That’s why we need research.”
As they await federal rules for hemp and CBD oil, Michigan officials have issued new guidelines on how it is regarding the industry.
Here are the highlights:
1. Most CBD will be treated like hemp in Michigan
Michigan does not consider CBD to be marijuana, as long as the THC content is below 0.3 percent, according to the Department of Licensing and Regulatory Affairs.
That means most CBD will be regulated as hemp.
If a CBD product has a THC content above 0.3 percent, it is considered marijuana.
The federal government considers the cannabis sativa L. plant with less than 0.3 percent THC by dry weight to be hemp.
2. CBD edibles can only be sold to medical marijuana patients
For now, any edibles made with CBD can only use CBD grown by regulated sources, according to regulators. At this time, the only regulated sources are medical marijuana license holders — which means they can only be sold to registered medical marijuana patients.
Additionally, there is no way for medical marijuana businesses to legally obtain industrial hemp right now — but there will be in the future once the state determines a legal way forward.
3. CBD oil as a dietary supplement is currently illegal
If CBD oil is added to food or drinks, or is marketed as a dietary supplement, it has to first be approved by the U.S. Food and Drug Administration. The FDA has not written its rules at this time — so for now, it’s illegal to do any of those activities in Michigan, according to the Michigan Department of Agriculture and Rural Development.
So far in Michigan, attempts by restaurants and coffee shops to sell cocktails and lattes with CBD oil have been shut down by local health departments.
“CBD … will be on the shelves even before federal regulations give it the go-ahead,” Colton said. “Being a little cautious right now is valuable.”
Lawyers say it’s unlikely that anyone selling CBD oil now will face a criminal charge — but they may face scrutiny from state regulators if they seek a hemp license in the future.
“The whole scheme is fascinating. It doesn’t make the subject matter into an illegality,” said Michael Komorn, a lawyer and president of the Michigan Medical Marijuana Association. “It’s a not a crime, it’s a regulatory fine. You won’t get arrested, but it may prevent you from getting a license to do that in the future.”
People are allowed to add hulled hemp seeds, hemp seed protein and hemp seed oil to food.
4. The state won’t launch an industrial hemp program until 2020
Michigan’s Department of Agriculture and Rural Development is waiting on the federal government to write its hemp program regulations before it comes up with its own rule set — and that won’t happen until 2020.
“It won’t be until 2020 until a state government can have a state plan for raising industrial hemp in their state,” said James Averill, deputy director for MDARD.
However, there is a mechanism in the 2014 Farm Bill that allows farmers to grow industrial hemp by working with universities or with state departments of agriculture — and Averill said Michigan is considering a way to help farmers plant hemp sooner rather than later.
“For putting seed in the ground this year — we have to work off the 2014 Farm Bill and that is a conversation that we’re continuing to have with the administration,” Averill said.
Previously, U.S. Drug Enforcement Administration requirements made the state’s direct involvement to authorize hemp farmers difficult. The 2018 Farm Bill changed that, Averill said.