CBD & Your Final Mile
In 2018, the Farm Bill removed hemp from the Controlled Substances Act. This removal left it up to each state to make their own rules for the plant -- including how it is grown, used and sold -- causing confusion among the states and regulators on what to do next.
Growing hemp remains illegal in some states, other states allow for the growth of hemp but not the sale of hemp products, and some allow for the sale of hemp products. While each state picks and chooses how to regulate CBD, anyone can go online to order the substance from a state where production of CBD products is legal. There’s a good chance that you will be involved in the delivery of a CBD product at some point in time -- potentially opening you and your company up to that liability.
Here’s how you can handle the delivery of CBD in your last mile:
It’s Important to Know the Difference
Much of the confusion around CBD comes from not knowing the differences in Marijuana, Hemp, and CBD. Knowing what you're moving and what form it is being transported in is crucial to knowing the legal barriers you’re facing.
Marijuana
A strain of the cannabis plant, Marijuana contains THC, a chemical that acts as a psychoactive when consumed and provides users the "high." Marijuana and its derivatives are still illegal at the federal level. Very few states allow unrestricted purchase of marijuana, and others allow medicinal uses only.
Hemp
Hemp is also a strain of the cannabis plant. It grows quickly and is considered a sustainable source for fibers and other items. Hemp typically contains little THC (the psychoactive element) and therefore does not provide users with a “high” when burned. Hemp is different from marijuana.
CBD
CBD is one of the most common chemicals (or cannabinoid) in cannabis plants. It can be derived from marijuana or hemp. Hemp-derived CBD does not provide the psychoactive effect because it lacks THC and it is rumored to have numerous health benefits including reducing anxiety, improving depression and relieving pain. When hemp was removed from the list of controlled substances in 2018, CBD derived from hemp soared in popularity.
FDA & CBD
After the Farm Bill removed hemp from the Controlled Substances Act, the FDA did not immediately comment on what that meant for hemp and CBD products. Late 2019, the FDA broke their silence and published guidance on how the United States would handle the production, sale and distribution of hemp.
As a part of their announcement, the FDA clarified that hemp can be used in the production of food products and is subject to the same FDA regulations as all other foods. For example, hemp seeds, chips, and other foods with hemp ingredients can be purchased and transported to meet all other "normal" FDA guidelines.
For food containing hemp CBD, however, it is still illegal to introduce these products into interstate commerce according to the FDA website. “At present, any CBD food or purported dietary supplement products in interstate commerce is in violation of the FD&C [Food, Drug & Cosmetics] Act…” according to the FDA website.
Does that mean it's illegal to ship? Not necessarily. Their statement was that interstate commerce of CBD marketed as a supplement or food was illegal. While it is Federally illegal for a state to restrict interstate commerce of hemp CBD due to the Farm Bill. in Nebraska, it may be confiscated once it has been delivered or if it is being shipped intra-state.
The FDA is currently working towards establishing standards for the use of CBD in foods, supplements and other products, but at the time of writing this article, have not released any additional guidelines.
Shipping and Delivering CBD Products
In 2019, a truck delivering hemp was driving from Oregon (where it is legal) to Colorado (also legal.) As he was driving through Idaho (where it is illegal), he was pulled over and the driver was arrested for felony drug trafficking. By crossing through a state where his wares were not allowed, he opened himself, his shipper, and his company up to the consequences of transporting illegal products.
As the above situation shows, ignorance is not bliss. Know what you’re shipping. Every form and product has its own implications, and you must start with what it is you’re transporting to maintain legal compliance.
It is important to recall that the Farm Bill only legalized CBD oil from Hemp that contains less than .3% THC. Driving and delivering forms of CBD with more than .3% THC or derived from marijuana plants is only legal in a handful of states. (view these states here.)For CBD approved federally in the Farm Bill, each state varies greatly in their laws on sales, transporting and purchasing. While the state someone lives in may not allow purchasing, the internet makes CBD available to the masses and their residents can easily order CBD products for delivery.
At the time of writing this article, there are only 3 states where hemp-derived CBD remains completely illegal:
Idaho
Nebraska
South Dakota
If you are planning on driving-through or delivering CBD in these states, you may be in violation of state and local laws and held responsible. Many other states have laws that do not prohibit hemp-derived CBD, but have stricter regulations than the federal government. You can view these states and their laws here.As you try to navigate how your company should transport hemp-derived CBD, consulting with an attorney is always the best option. As a starting point, it may also help to look at the USPS guidelines. The below guidelines were published in March 2019, after a lawsuit over the shipping of hemp CBD. If you were to use USPS to transport your CBD products, they require:
Shippers must comply with all federal and state guidelines for the CBD they’re shipping, including a less than .3% THC level.
It was produced lawfully with all federal, state, and local laws.
The shipper must maintain records of compliance with laws and regulations for at least 2 years after mailing.
In summation, USPS guidelines start with knowing what they’re transporting and leaning on the shipper to back-up their compliance with laws, off-loading the liability back to the mailer. You can read their release here.
The bottom line...
Until the USDA, FDA, and states have clarified laws around shipping hemp and CBD, knowing what you’re carrying, and its potential implications is going to be your biggest protection against legal action. You may also want to stay out of states (whether driving or delivering) where CBD is still illegal and maintain all compliance documentation from your shippers.
The last mile can be nuanced and complicated, even when you’re not shipping newly legalized products. eTrac simplifies the last mile for shippers, 3PL’s and freight forwarders like you. Our platform allows you to reach the final mile faster, while saving money and improving service. Learn more about our product here.
All information is accurate as of date this blog was published, according to sources cited within the blog. If you have additional information on delivering CBD that you believe is pertinent, please contact us.
Update 9/13/21: Hemp CBD became legal in South Dakota in late 2020. CBD and CBD products are legal in Idaho as long as they contain zero THC and are not derived from marijuana.