Massachusetts regulators have banned the sale of some hemp products, including foods infused with cannabidiol (CBD) and dietary supplements.
The restrictions were outlined in a recent policy statement from the Massachusetts Department of Agricultural Resources (MDAR). It also prohibits CBD products that make therapeutic/medicinal claims, animal feed with hemp, and the sale of unprocessed or raw plant material to consumers.
The policy does allow sales of some products, such as hemp seeds, hemp seed oil and hemp clothing. But it is causing concern and confusion among some farmers.
The state says its policy follows guidance from the U.S. Food and Drug Administration (FDA), which says it's unlawful to introduce CBD into food products. Some states have also followed the FDA's guidance, but others have not.
The Massachusetts policy focuses on the sale of hemp products, not possession.
Amherst hemp farmer Julia Agron says CBD is a lucrative part of the hemp market that farmers in the state want to be a part of. "They're all growing for CBD," she said.
"Massachusetts is choosing to be prohibitive to such a nascent industry," said Agron, who is also outreach coordinator for the Northeast Sustainable Hemp Association. "This is only hurting small farmers, small Massachusetts businesses. That's it."
Other businesses are concerned about the state policy too.
"It's kind of a scary time. This is our entire life savings that's into this. We don't have investors," said Laura Beohner, president and co-founder of The Healing Rose, a company that makes skincare products with hemp.
Beohner says her company just moved into a new facility in Newburyport with plans of expanding into food and tinctures. The company has already spent more than $20,000 in the process, according to Beohner.
"We have a lot of materials in terms of the raw ingredients, we bought a wad of extracts, we have lots of bottles that are empty packaging — all those things we just can't put to use now," Beohner said Thursday.
Interest in CBD and hemp has been growing. A recent study said the CBD market could reach $20 billion by 2024.
But the rules and regulations around it have been murky, as states and the federal government try to get a handle on the growing market.
The state's recreational marijuana law allows hemp to be grown here. So far this year, MDAR has issued 102 licenses to grow and process hemp in the state. Hemp production also became legal at the federal level under the 2018 Farm Bill. That law still gave the FDA the ability to regulate products containing cannabis or cannabis-derived ingredients such as CBD. So far, the FDA hasn't approved CBD for food. And that's where the state took its cue from.
In a statement, Brendan Moss, a spokesman for Gov. Charlie Baker, said:
"The Baker-Polito Administration recently issued policy guidance regarding the sale of hemp-derived products in the Commonwealth consistent with previously announced federal policy and looks forward to working with the FDA, state agencies and local boards of health to ensure all products in Massachusetts comply with applicable federal and state laws and regulations."
The FDA is still continuing to look into CBD products, and just this week extended the period for public comments on the matter.
Agron, the farmer, says the ongoing federal process is reason enough for Massachusetts to "slow down" on making any policy decisions. She's part of a newly formed group called the Massachusetts Hemp Coalition that plans to gather at the State House Monday to protest the recent policy announcement.
Observers expect the debate on regulating CBD products to continue.
"This is literally happening in real time," said Martín Caballero, managing editor of the trade publication BevNET, which covers CBD foods and beverages. "This is changing constantly, and this is something that is confusing and really complex to a lot of really smart people. So this is going to take a while."
Caballero says the state's policy isn't surprising given the FDA's stance on CBD in food products. And he says those who put CBD in food and beverage products are taking a risk right now. The good news for people operating in this space is that there's a strong appetite at the federal level to find a solution, Caballero says.
"Massachusetts residents shouldn't worry that they're never going to get CBD products or never going to get hemp-derived products," Caballero said.
Some say regulators need to expand their views on CBD because the products will indeed exist — whether they're legal or not.
"These products that they ban will easily be obtainable in the illicit market," said Kamani Jefferson, president of the Massachusetts Recreational Consumer Council, a marijuana consumer advocacy group. "There's a demand for these products. So thus the supply chain will continue."
The state's policy says those who don't comply could face action — such as the destruction or seizure of products — from local health boards, law enforcement or state agencies. Some stores are still advertising their CBD-infused food products, as of Friday.
It's worth noting that under both state and federal law, hemp is treated differently than marijuana. Hemp typically contains no more than 0.3% THC (or tetrahydrocannabinol), the psychoactive component in marijuana, while marijuana has more THC.
Hemp and CBD derived from hemp are regulated in the state by MDAR. CBD derived from marijuana is regulated by the Cannabis Control Commission.
So if you're an adult, you can buy, from licensed marijuana retailers, products approved by the CCC — with a higher THC level.
To Kamani Jefferson, of the marijuana consumer council, that makes no sense.
"If THC products are allowed for folks who are 21 and up," he said, "why are we saying CBD isn't allowed, which doesn't have that psychoactive high that THC has."
This article was originally published on June 21, 2019.
This segment aired on June 22, 2019.