With a population of over 21 million, Florida has long been viewed as an area for potential commercialization by the cannabis industry.
On May 3, 2019, the Florida legislature passed SB 1020, creating the state hemp program and authorizing the Florida Department of Agriculture and Consumer Services (FDACS) to enact regulations to govern the program. The bill, first filed in the Florida Senate on February 13, 2019, passed with overwhelming support; the final version passed by a margin of 39-0 in the Senate after passing 112-1 in the House. Governor Ron DeSantis has until May 18, 2019, to veto the bill or it will automatically become law.
“The historic vote,” according to FDACS Commissioner Nicole Fried, is in response to the federal 2018 Farm Bill, which “removed the prohibitions on industrial hemp in place since 1937 and authorized states to create hemp programs.” Id. If SB 1020 becomes law, it will fundamentally alter the treatment of hemp and hemp extracts, including cannabidiol (CBD) products, under Florida law.
Cannabis in Florida
With a population of over 21 million, Florida has long been viewed as an area for potential commercialization by the cannabis industry. Governor DeSantis made headlines in March when he signed legislation that effectively repealed the ban on smoking and/or “vaping” medical cannabis. Yet outside of Florida’s medical marijuana program (and the hemp pilot project discussed below), cannabis—which includes hemp and hemp products—has remained a controlled substance, making the manufacture, processing, sale and/or possession of hemp or hemp-derived products a criminal endeavor. Even within the state’s medical use program, cultivation of cannabis, even for medicinal purposes, remains tightly regulated.
In the wake of the 2014 Farm Bill, Florida did create an industrial hemp pilot project program, under which certain educational institutions were authorized to cultivate, process, test, research, create and market safe and effective commercial applications for industrial hemp in Florida. Yet in the aftermath of the 2018 Farm Bill, Floridians looked to the state legislature to take the state’s limited hemp program a step further by defining, permitting and regulating hemp and hemp products, including those containing CBD, outside the confines of the pilot project.
SB 1020
SB 1020 is the long-awaited “step forward” and introduces a number of significant changes to Florida’s cannabis industry, several of which are detailed below.
Descheduling of Hemp and Hemp-Derived CBD
Importantly, the bill specifies legislative findings that hemp is an “agricultural commodity” and that hemp-derived CBD products “are not controlled substances,” shifting control over hemp and hemp extracts away from the criminal sphere and into the agricultural and commercial spheres.
Cultivation
The bill creates a framework whereby persons and entities may apply for and obtain a license from FDACS allowing them to cultivate hemp, defined as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof, and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers thereof, whether growing or not, that has a total delta-9 tetrahydrocannabinol concentration that does not exceed 0.3 percent on a dry-weight basis.”
Sale
The bill also explicitly provides for the distribution and retail sale of hemp extracts—defined as substances or compounds “intended for ingestion” that are “derived from or contain” hemp and that do not contain other controlled substances—subject to testing and labeling requirements. (Note that the U.S. Food and Drug Administration has issued warning letters to certain entities involved in the sale of CBD-related products; the Federal Trade Commission has likewise taken issue with claims related to medical uses of CBD products.) While it is true that CBD products have been sold in Florida even absent statutory permission, FDACS has cautioned that such products were “unregulated, untested and without standards on what consumers are putting into their bodies.”
Conclusion
If SB 1020 becomes law, its terms will take effect on July 1, 2019. However, even after SB 1020 takes effect, Florida legislators still have much to do with respect to defining the contours of the state’s industrial hemp program. For instance, the bill directs FDACS to initiate the process for promulgating regulations by August 1, 2019—meaning that regulations are likely not forthcoming before the end of the year. Although it is impossible to predict all the details of the laws, regulations and guidance that Florida will enact in the coming months, what is known is that the passage of SB 1020 has substantial consequences for the cannabis industry, including for cannabis consumers and prospective producers in Florida, and for cannabis-related businesses nationwide.
For Further Information
If you have any questions about this Alert, please contact Seth A. Goldberg, Justin M. L. Stern, Joseph J. Pangaro, any of the attorneys in our Cannabis Industry Group, or the attorney in the firm with whom you are regularly in contact.
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