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, Delaware, and Florida. This week, we look at the Peach State.
Earlier this year, Georgia jumped on the hemp bandwagon by enacting HB 213, which legalized the commercial production of hemp and hemp products in the state. Under the new law, which is codified in O.C.G.A. § 2-23-1 et seq., only growers and processors licensed by the Georgia Department of Agriculture (“GDA”) will be permitted to grow and process hemp in the state. Note that licenses will not be issued by the GDA until final rules and regulations are in place. The GDA’s process of drafting rules and regulations began in July with the agency released proposed rules that are now open for public comments.
The proposed rules provide that licensees shall comply with specific testing, storage, recordkeeping and transportation requirements. For example, in Georgia, no licensed grower or processor may transport hemp without a hemp transportation permit issued by the GDA. Hemp may only be transported to permittees or to storage facilities owned by the licensees and listed on the licensee’s approved license application.
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The proposed rules also address the manufacture of hemp products. Hemp product means “all products with the federally defined THC level for hemp derived from, or made by, processing hemp plants or plant parts that are prepared in a form available for commercial sale, but not including food products infused with THC unless approved by the United States Food and Drug Administration.” (Emphasis added).
Although the manufacture and sale of Hemp-CBD food is expressly prohibited – and reiterated in a May 10 press release issued by the GDA – the manufacture and sale of other Hemp-CBD products, such as smokables and cosmetics, is not clearly authorized nor restricted. However, the GDA’s proposed rules provide that “[n]othing in these Rules shall be construed as authorizing any person to violate any Federal law or regulation” and requires that licensed processors comply with the federal Food, Drug and Cosmetic Act and other rules and regulations related to product manufacturing, consumer safety and public health.
As this summary reveals, the proposed rules address the fundamental issues that surround the production of hemp but are vague on the manufacture and sale of Hemp-CBD products, with the exception of food. As the public comment period evolves, it will be interesting to see whether the GDA clarifies this issue and whether other state agencies, such as the Georgia Department of Health, provide additional guidelines on the production of these products.