Iowa says CBD retail products still illegal in state pending federal regulatory clarification

By Hank Schultz

- Last updated on GMT

Getty Images / Yarygin
Getty Images / Yarygin
A recent statement by the Iowa Attorney General shows that not everyone is on the hemp/CBD bandwagon.

The statement issued earlier this week by Iowa AG Thomas J. Miller​ strikes a cautionary tone on CBD and hemp.  In general, the state is hanging back, waiting on action from the US Food and Drug Administration and the United States Department of Agriculture.

Iowa has approved medical uses of CBD. Two manufacturers are registered in the state, and their products can be distributed through five dispensaries to consumers who have been approved by doctors to receive the products.

Many in the hemp world believe that the 2018 Farm Bill had approved hemp and CBD across the board. The bill defined industrial hemp and removed the plant from the Schedule 1 list of controlled substances.  (THC, the psychoactive component of cannabis, is still on that list.)

 Some early adopter states, like Colorado, have been licensing hemp growers for several years. They have continued those programs while at the same time submitting their hemp plans to USDA, something called for in the farm bill.

Iowa: CBD still a controlled substance

Miller, however, takes a different view of what that bill has made possible and how it interacts with Iowa state law. For starters, he notes that Iowa differentiates between the stalk and seeds of cannabis, which can legally go to food or fiber uses, and the leaves and flowers of the plant, which is where the THC and CBD are derived.

“Because CBD is derived from parts of the cannabis plant that are included in definition of marijuana, CBD is considered marijuana under Iowa law. Iowa law places both marijuana and its psychoactive component, tetrahydrocannabinols (THC), in Schedule I of the Uniform Controlled Substances Act,” ​he wrote.

So unless and until FDA crafts some sort of exception for CBD, Miller has placed a stopper on the legal retail sale of those products in the state. 

“Consequently, any product containing any amount of CBD or any amount of THC is classified as a Schedule I controlled substance under Iowa law,” ​he continued.

No hemp cultivation in Iowa this year

Miller also said that the growing of hemp in the state awaits approval by USDA of the state’s plan to regulate the activity. Other states, like Colorado, Oregon and Kentucky among others, seem to have adopted the stance that their regulatory schemes can be adjusted on the fly depending on how USDA comments on their plans.

“Before hemp production can commence in Iowa, the United States Department of Agriculture (USDA) must approve a state plan. The USDA will not begin approving state plans until after it promulgates regulations. The USDA has indicated it intends to issue regulations in the fall of 2019 and is committed to completing its review of plans within 60 days once regulations are effective,”​ Miller wrote.

Iowa moving in opposite direction of most states

Denver-based attorney Justin Prochnow, a shareholder in the firm Greenberg Traurig, said Iowa’s stance is counter to the direction most state authorities seem to be moving on the hemp/CBD question.

“Most states are going the other way with it,”​ Prochnow told NutraIngredients-USA. Prochnow noted that Miller had cited some statements made by former FDA Commissioner Scott Gottlieb to support his restrictive view of the current legality of CBD products and hemp cultivation.

“He pointed to the statements of Scott Gottlieb but he kind of cherry picked the statements he went with.  Gottlieb was also famous for saying they are going to exercise enforcement discretion on CBD and unless you are making egregious disease treatment claims they are not going to come after you,​” he said.

Prochnow said Miller seems to be motivated more by a strict legal interpretation of the current state of affairs, whereas some other states are pushing that envelope in an effort to make sure they don’t miss catching the CBD economic wave.

“From a law standpoint this is not so surprising.  The law still says that CBD is not a permissible dietary ingredient because it was the subject of a prior drug investigation. Iowa is going the other way from states that are trying to create a new business,”​ Prochnow said.

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