USPS provides guidance on the shipment of hemp products
By Paula Savchenko
A hot topic of discussion this year has been the 2018 Farm Bill, and what it means for the burgeoning hemp industry. Attorneys in the space get calls regularly on the issue, with clients asking some form of the question: “Is hemp now fully legal?” A follow-up question is typically “Can I ship hemp across state lines legally?” For a full discussion on the current legality of hemp see this article we wrote: Farm Bill Passes – More Uncertainty for the Hemp Industry, For Now. The USPS has recently released guidance on how to package CBD and other hemp-derived products for shipment across state lines.
Under the 2014 Farm Bill, states could move forward with legislation that allowed for farmers in those states to cultivate, process and commercialize hemp products under pilot programs. The 2018 Farm Bill de-scheduled hemp from the Controlled Substance Act and significantly opened up the market. Further, the 2018 Farm Bill specifically states that hemp produced in compliance with the Farm Bill can now be shipped across state lines.
Given the USPS getting several inquiries regarding shipping hemp across state lines as well as a recent decision from an Administrative Law Judge, USPS decided to release a statement addressing the issue. In KAB, LLC v. United States Postal Service, MLB 18-39, the Administrative Law Judge issued an order finding, “Congress currently permits the interstate sale, transportation, and distribution of exempt industrial hemp pursuant to the most recent appropriations act, I find that exempt industrial hemp and products derived from exempt industrial hemp are mailable.”
In the USPS guidance, the USPS stated: “As a result of the 2014 Farm Bill, some CBD products derived from industrial derived from industrial hemp can be mailable under specific conditions, including the possession of a license from a state’s Department of Agriculture to produce industrial hemp, and the requirement that the hemp (or its derivatives) be at, or below, a 0.3% limit for the tetrahydrocannabinol (THC) content (the chemical responsible for producing the “high” associated with marijuana).”
Further, the USPS statement lays out criteria for mailing CBD or other hemp-derived products, with the main focus being proving the product is compliant with the 2014 Farm Bill. Further, the USPS will release a similar statement for hemp produced under the 2018 Farm Bill once there are implementing regulations in place. For now, the USPS guidance for shipment of hemp includes:
- A signed statement on the mailer’s own letterhead must be signed by the mailer and must include the language: “I certify that all information furnished in this letter and supporting documents are accurate, truthful, and complete. I understand that anyone who furnished false or misleading information or omits information relating to this certification may be subject to criminal and/or civil penalties, including fines and imprisonment.”
- A copy of the industrial hemp producer’s license issued by the Department of Agriculture, for the state where the post office is located and showing that the mailer is authorized by the registered producer to market products manufactured by that producer. This could be as simple as a contractual agreement between the producer and distributor.
- The industrial hemp provides contains a delta-9 THC concentration of less than 0.3% on a dry weight basis. The mailers will need to provide a lab report in support.
It is important to keep in mind that the hemp industry comes with risks and operating a business in the industry is all about risk management for the time being. Although complying with the USPS guidelines does not eliminate all risks, this is one step in the right direction.
Paula Savchenko is an attorney at the Law Offices of Moffa, Sutton, & Donnini, P.A, based in Fort Lauderdale, Florida. Ms. Savchenko practices primarily in the areas Administrative Law and Taxation, as she counsels and represents businesses and individuals in their dealings with government agencies. More specifically, most of her work involves regulatory matters, with a focus on the cannabis industry. She also speaks and writes regularly on the legal aspects of the cannabis industry. In addition to serving on the board of the Florida Bar – Administrative Law Section – South Florida Chapter, she also serves on the board of the Greater Fort Lauderdale Tax Council, as well as Cannabis Law Accounting and Business.