Hemp-CBD Across State Lines: Maine

20 Oct Hemp-CBD Across State Lines: Maine

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 summarize a new state in alphabetical order. Today, we turn to Maine.

Maine began authorizing the commercial sale of industrial hemp and Hemp-CBD products in 2015. Following the enactment of the 2018 Farm Bill, the state passed H.P. 459 and S.P. 585 to align Maine with the 2018 Farm Bill and clarify the legality of Hemp-CBD foods.

Under S.P. 585, which generally went into effect on September 19, “hemp” means:

the plant Cannabis sativa L. and any part of that plant, including the seeds and all derivatives, extracts, cannabinoids, isomers, acids, salts and salts of isomers, whether growing or not, with a delta-9-tetrahydrocannabinol concentration that does not exceed of not more than 0.3% on a dry weight basis and that is grown or possessed by a licensed grower in compliance with this chapter” and “includes agricultural commodities and products derived from hemp and topical or ingestible consumer products, including food, food additives and food products derived from hemp.” (Emphasis added).

Moreover, S.P. 585 provides that:

[n]otwithstanding any other provision of law to the contrary, food, food additives or food products that contain hemp, including cannabidiol derived from hemp, are not considered to be adulterated or misbranded under this subchapter based solely on the inclusion of hemp or cannabidiol derived from hemp.” (Emphasis added).

Accordingly, the manufacture and sale of Hemp-CBD food products seem to be authorized in the state so long as they comply with the THC testing and marketing requirements.

The state has adopted labeling requirements for packaged and unpackaged Hemp-CBD foods. Packaged food labels must:

1. Indicate that the food, food additive or food product contains hemp or Hemp-CBD;
2. Describe the CBD content by weight or volume;
3. Include the source of the hemp from which the CBD was derived;
4. In the case of extracts or tinctures, indicate the batch number; and
5. Include a disclosure statement that the food product has not been tested or evaluated for safety.

Unpackaged Hemp-CBD foods, which are foods sold in public eating places, such as retail stores, hotels and restaurants, must be accompanied by a conspicuous label or sign indicating that the product contains CBD either on the menu or in an open manner where the food order or food product is served. In addition, the public eating place must conspicuously display a directory for use by customers that contains information on the contents of all unpackaged Hemp-CBD products.

However there is one requirement that applies to both packaged and unpackaged Hemp-CBD foods: they cannot be marketed with any claims that the products can “diagnose, treat cure or prevent any disease, condition or injury” without approval from the FDA. If you follow our blog, you know it is wise not to make statements about the therapeutic value of Hemp-CBD products (see here and here). So by imposing this requirement on Hemp-CBD manufacturers and public eating places, the state is helping Hemp-CBD stakeholders mitigate their risk of FDA enforcement.

Turning to other categories of Hemp-CBD products, the sale of Hemp-CBD smokable products is neither restricted nor authorized under the law whereas the sale of cosmetics (i.e., topical) is expressly allowed under the definition of “hemp”.

Overall, it’s fair to say that Maine is a “Hemp-CBD friendly state.” In fact, no enforcement action has been taken against Hemp-CBD products since the enactment of H.P. 459 in March 27, 2019.