This week state authorities from Wisconsin and Michigan issued statements regarding the legal status of CBD, which can be found here: Michigan Department of Licensing and Regulatory Affairs Statement and Wisconsin Attorney General Statement
On May 10, 2018, the Michigan Department of Licensing and Regulatory Affairs issued a statement (which was revised today, May 11, 2018) that states that CBD is covered under the state's medical marijuana laws, to the extent it is derived from the parts of the cannabis plant which Michigan law defines as "marihuana":
- all parts of the plant Cannabis sativa L., growing or not
- the seeds of that plant
- the resin extracted from any part of the plant
- every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin
(emphasis in original).
However, it goes on to provide, "marihuana" does not include:
- the mature stalks of the plant
- fiber produced from the stalks
- oil or cake made from the seeds of the plant
- any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks
(emphasis in original).
This definitional scheme tracks that of many other states, and also shares many of the same concepts as the federal Controlled Substances Act and the Industrial Hemp Act. So while there is not necessarily anything newsworthy in that aspect of the statement, the department concludes by providing that:
Marihuana does not include industrial hemp grown or cultivated (or both) for research purposes under the industrial hemp research act. The Industrial Hemp Research Act limits industrial hemp to cultivation or research and does not authorize its sale or transfer.
As such, the department appears to take the position that irrespective of the source of the CBD, Michigan will now be regulating CBD as marijuana under its medical marijuana laws because the sale and transfer of industrial hemp is not authorized under its industrial hemp laws.
The past few weeks there has been a great deal of buzz surrounding the Wisconsin DOJ's position on hemp production and use following an April 27,2018 Analytical Note providing that "CBD oil and other CBD products, with or without THC, are illegal to possess or distribute within the State of Wisconsin except for patients with a doctor's certification in very limited circumstances." April 27, 2018 Analytical Note.
This was followed by a May 4, 2018 statement by the Attorney General that provided that CBD production and possession was not authorized under Wisconsin law except in the following situations:
the Wisconsin State Legislature has chosen to allow the possession and distribution of CBD in only very limited circumstances.
- An individual may possess CBD only if he/she has a doctor’s certification under Section 961.32 of the Wisconsin Statutes;
- Only a physician or pharmacy may sell CBD if they have an FDA investigational drug permit and approval from the Wisconsin Controlled Substances Board, under Sections 961.34 and 961.38 of the Wisconsin Statutes;
- The Legislature has only chosen to allow this type of possession and distribution if the CBD does not have a psychoactive effect.
Following the publication of the statement, numerous farmers, who had applied for licensure under the Wisconsin hemp law were confused and upset because they understood the statement to limit their ability to produce and process hemp for the purpose of making CBD. See Fox6 Report.
However, on May 9, 2018 a meeting was held with "Attorney General Brad Schimel and his staff, members of the Wisconsin State Legislature, the Wisconsin Farm Bureau Federation (WFBF), and the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) regarding Wisconsin’s new industrial hemp research pilot program." Following that meeting, Attorney General Schimel expressed that as long as farmers authorized to grow and sell industrial hemp under Wisconsin's law remain in abidance of the applicable regulations they will be
exempt from criminal prosecution, and products made from industrial hemp, including CBD, are lawful.
He further stressed that the main concern of the DOJ is ensuring CBD products are safe--perhaps a recognition of synthetic products being labeled CBD which have resulted in hospitalizations in Illinois and North Carolina. Ultimately, the statement provides that
Farmers who follow DATCP's rules and regulations may do the following:
- Grow industrial hemp without fear of criminal prosecution;
- Sell the entire industrial hemp plant or parts of the plant to anyone;
- Process the plant as permitted by DATCP's rules and regulations, which includes producing CBD.
For more on the evolving world of CBD and its legal status, please check out our other articles, or contact Lindsey Streicher or Tom Norby.
Disclaimer: This article is provided as general information only. This is not legal advice, and nothing about this article creates a legal relationship between the reader and Brownson Norby, PLLC. Consult your own professional, or contact us, if you have specific questions or concerns about the impact of this new rule on your operation. We expressly disclaim all liability relating to actions taken or not taken based on the contents of this article.