On March 4, 2019, the United States Postal Service (“USPS”) issued a guidance letter meant to address how cannabidiol (“CBD”) products may be sent via U.S. mail. This is another of many recent state and federal CBD law developments. The USPS has advised that the guidance is temporary and will be revised once the Agricultural Improvement Act of 2018 (the “Farm Bill”) is fully implemented. Until then, the USPS guidance letter should be followed by those that mail CBD products.
What does the USPS require to mail CBD products?
Previous Restrictions on Mailing CBD Products
In 1970, the Controlled Substances Act (the “Act”) was enacted to place all federally regulated substances into one of five schedules. Categorization was based upon each substance’s respective medical use, potential for abuse, and evaluated for its safety and/or dependence potential. Under the Act, Schedule I substances are subject to the most stringent regulatory restrictions. When the Act was implemented, marijuana and hemp-derived extracts were defined as schedule I substances regulated by the Drug Enforcement Administration (“DEA”). Schedule I substances may not be sent/transported in interstate commerce.
Changes to CBD Law Led to the Mailing Guidelines
The Agricultural Act of 2014 (“2014 Farm Bill”) reworked the definition of industrial hemp, allowing farmers to grow Cannabis sativa L., provided that no part of the plant contained a concentration of more than 0.3% of Tetrahydrocannabinols (“THC”), on a dry weight basis. In its advisory opinion, the USPS has clarified that, in certain circumstances, the mailing of certain CBD products with supporting documentation will not violate USPS regulations. Specifically, “[m]ailers must provide, at a minimum, a signed self-certification statement on their own letterhead, a document showing the mailer has authorization to market CBD products by the entity registered or licensed by the State, and a lab report detailing the THC concentration of the CBD product.”
CBD Law, CBD Product Businesses and the Farm Bill
Implementation of the Farm Bill with respect to CBD products has not been as seamless as businesses had imagined. For example, businesses in states such as Maine and New York have been stung by state and city officials who have advised that certain CBD edibles may not be sold because the Food and Drug Administration (“FDA”) has not listed CBD as a federally approved food additive. Similarly, despite being removed from the list of schedule I substances, trademarks for hemp-derived CBD products continue to be rejected by the United States Patent and Trademark Office.