NY boundaries on pilot hemp program misinterpreted as 'ban', attorney says

By Hank Schultz

- Last updated on GMT

New York State Capitol in Albany, NY. Photo: Wikimedia Commons / Matt H. Wade
New York State Capitol in Albany, NY. Photo: Wikimedia Commons / Matt H. Wade
Counter to the chatter aroused by a recent report, the State of New York has not ‘banned’ CBD, according to an expert on the legality of hemp products. The state did however put some boundaries around a pilot agricultural program.

Justin Prochnow, an attorney who’s a shareholder in the firm Greenberg Traurig, has had to become expert in the ins and out of hemp regulation almost by default. Prochnow told NutraIngredients-USA that he now gets dozens of requests for information on the topic a month.

Misinformation abounds

“I've never seen an area in which more misinformation has been circulated. I spend an awful lot of my time on CBD these days,” ​Prochnow told NutraIngredients-USA.

A report from a hemp industry publication was circulated last week with the headline “New York State bans CBD food, vape products.”​ In Prochnow’s view, the report, which garnered a lot of attention around the industry, has been interpreted as going a step beyond what actually transpired.

The confusion arose over a state document describing the limits of a pilot program for the cultivation of industrial hemp in New York State. The document, which was dated Dec. 3. is structured as a FAQ on the application process. 

“One thing to keep in mind is that this is a guidance document and is not binding on the State of New York,”​ Prochnow said. “What it says is they won’t entertain applications for growing hemp in New York if you are looking at growing hemp for the purpose of extracting CBD for using in human or animal food.”

FAQ language

The FAQ points potential purveyors of CBD products toward the dietary supplement realm. It states, for example that, “You can make and research the use of CBD, as long as (1) it is listed in the Research Plan in your application and (2) you are in compliance with all provisions of the Research Partner Agreement.

“What you cannot do is sell any item for human consumption that has CBD as an ingredient unless you meet two additional standards: (3) the item is produced under the rigorous dietary-supplement standards described in the Research Partner Agreement and (4) the item is properly labeled and packaged for sale pursuant to FDA regulations for dietary supplements. This is subject to change,” ​the document states.

The application process, as presently structured by the state, will require applicants to sign a waiver acknowledging the fact that the Food and Drug Administration has ruled that CBD is not a legal dietary ingredient for use in dietary supplements.

New York’s action adds to the cacophony of conflicting information surrounding the use of CBD. Some proponents of the ingredient have been hanging their hats on the notion that certain aspects of the hemp plant have been approved for food use, and what they are doing is simply extracting the ‘juice’ from the plant, much as one might do to make grape juice.

Clarity still lacking

In New York State, however, it appears that if CBD is part of the picture, that product must be manufactured, packaged and sold as a dietary supplement, even though FDA is not on board with CBD supplements.

Prochnow said there was also some fuzziness in the FAQ itself about the boundary between dietary supplements and foods, and so perhaps shouldn’t be taken as fully authoritative on that delineation in law. It all adds up to an uncertain investment picture, because the frame of reference is continually shifting, he said.

“This further emphasizes the notion that once the Farm Bill passes, CBD is legal in all fifty states is not true. But then you have others saying, ‘It’s banned in certain places,’ and that doesn’t turn out to be true, either,”​ Prochnow said.

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