With the Passage of the 2018 Farm Bill, states are scrambling to update their Hemp Pilot Programs and replace them with permanent hemp laws and regulation. Washington State is no exception. On January 16, Senate Bill 5276 (officially titled “Authorizing hemp production in conformance with the agricultural improvement act of 2018”) was introduced. In its current form, the bill aims to replace the Washington’s Hemp Pilot Program with a permanent structure to grow hemp and provide for the extraction of hemp-derived products, including cannabinoids. This bill would bring a drastic change to Washington hemp law.
The bill is currently in its second substitute form, after an adopted amendment on the floor. It passed unanimously with a floor vote in the Senate. The bill was passed over to the house, where it is moving quickly. On March 29, 2019, the bill was referred to Appropriations.
The bill is extensive, but there are some takeaways.
New Washington Hemp Law: Key Takeaways
First and foremost, Washington State will not consider hemp itself a controlled substance. The bill also exempts hemp and industrial hemp, including all derivatives, from Washington’s controlled substances act. This is likely a more liberal interpretation than federal CBD laws, which currently include CBD isolate as an investigative drug currently under the New Drug Application for Epidiolex.
Currently, the Washington definition of drug differs slightly from the FDA under RCW 69.50.101. FDA considers anything a drug if the intention of the product is, essentially, to create a change in the human body. Many current distributors of CBD products have fallen into this broad definition by labeling a CBD product’s intended effects without going through the drug approval process.
Washington, in contrast, only identifies it as a drug if it also is a controlled substance under Washington Law. First, under the amendments, hemp would no longer be a controlled substance:
(f) “Controlled substance” means a drug, substance, or immediate precursor included in Schedules I through V as set forth in federal or state laws, or federal or commission rules, but does not include hemp or industrial hemp as defined in ((RCW 15.120.010)) section 2 of this act.
Because it does not meet the definition of a controlled substance under the new bill, it would also not be considered a drug under Washington Law:
(o) “Drug” means (1) a controlled substance recognized as a drug in the official United States pharmacopoeia/national formulary or the official homeopathic pharmacopoeia of the United States, or any supplement to them; (2) controlled substances intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in individuals or animals; (3) controlled substances (other than food) intended to affect the structure or any function of the body of individuals or animals; and (4) controlled substances intended for use as a component of any article specified in (1), (2), or (3) of this subsection. The term does not include devices or their components, parts, or accessories.
Given that hemp-derived products would no longer be a controlled substance, they would not meet the definition of a drug under Washington Law. This would not, however, in any way limit the FDA’s authority, and even if you are compliant with Washington law, you would still have to comply with FDA requirements, which have yet to be developed with relation to the 2018 Farm Bill.
Gleam Law, and its attorneys keep abreast of the near-daily developments in the Cannabis, Hemp, and CBD markets. There are still gaps in the legal and regulatory structures governing these markets for these products. While we cannot completely eliminate the risk of operating ahead of the curve, Gleam Law’s Hemp, CBD, and Cannabis attorneys will ensure that you are able to minimize the risk of adverse consequences as a result of being on the forefront.