Massachusetts Clarifies Law on Hemp and CBD Sales

The Massachusetts Department of Agricultural Resources (“MDAR”) and the state’s Department of Health (“DPH”) have issued new guidance on the sale of Hemp and Hemp-derived cannabanoids, (namely, CBD) products in Massachusetts.

The MDAR guidance applies to hemp and hemp-derived products.  It establishes that the follow hemp-derived products can be sold in Massachusetts:

  • Hemp seed
  • Hemp seed oil
  • Hulled hemp
  • Hemp seed powder
  • Hemp protein
  • Clothing
  • Building material
  • Items made from hemp fiber.

For these products, no license is required to sell approved at retail.  Licenses remain are required for wholesale grower to wholesaler, wholesaler grower to wholesale processer, and wholesale processor to retailer transactions.  For those looking to operate in strict compliance with all applicable laws, retailers are advised to ensure the chain of custody of any products sold can be verified to include only licensed growers and licensed processers.

This guidance appears to even go beyond the federal Food and Drug Administration’s (“FDA”) requirements, and bans: (i) any food product containing CBD or other hemp-derived cannabanoids; (ii) any product containing CBD derived from hemp that makes therapeutic/medicinal claims; (iii) any product that contains hemp as dietary supplement; (iv) animal feed that contains any hemp products; and (v) unprocessed or raw plant material that is meant for end use by a consumer, all are prohibited to sell.

If you are already licensed by MDAR to grow or process hemp, you do not need to apply for an additional license to sell hemp-derived products.  That is a major advantage conferred by the new guidance.  Licensed growers and processers are automatically deemed licensed to sell hemp products, provided that the licensee sell only approved products from MDAR’s list.

The DPH guidance applies to food products containing CBD sold or manufactured in Massachusetts.  It prohibits the use of CBD in such food products, but does clarify that some hemp-derived products – hulled hemp seeds, hemp seed protein, and hemp seed oil – can be used in food.  The guidance does not prohibit the use of CBD in cosmetic products because DPH does not regulate such products.

Again, the agencies’ directives dovetail with guidance announced by the FDA in the wake of the December 2018 Agriculture Improvement Act of 2018, which legalized hemp.  The FDA’s guidance establishes that it is illegal to market food or dietary supplements containing CBD or THC because those compounds are active ingredients in FDA-approved drugs.  Hulled hemp seeds, hemp seed protein, and hemp seed oil have been recognized as safe for inclusion in food by the FDA.  Finally, the FDA has cracked down on companies making unsubstantiated claims about the medicinal benefits of CBD, sending warning letters to three businesess that made “unfounded, egregious claims about their products’ ability to limit, treat or cure cancer, neurodegenerative conditions, autoimmune diseases, opioid use disorder, and other serious diseases.”

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