TO: Oregon Association of Broadcasters
FROM: Matt McCormick and Sekoia Rogers
DATE: January 15, 2019
RE: Impact of New Federal Legalization on Advertising Hemp in Oregon
The federal government took a giant stride toward legalization of hemp in the United States with the passage of the Agriculture Improvement Act of 2018 (“the 2018 Farm Bill”). Now the question is whether Oregon broadcasters have a green light to air advertising for hemp (aka cannabidiol or CBD) products. The short answer is not yet.
While the 2018 Farm Bill excludes hemp from the federal list of controlled substances, it put in place a number of obstacles that must be overcome before the sale of hemp products in a particular state is legal under federal law. First, a state must either submit its own hemp production plan or follow a plan that the United States Department of Agriculture (USDA) will establish. Under Section 10113 of the 2018 Farm Bill, a state department of agriculture must consult with the state’s governor and chief law enforcement officer to devise a plan to be submitted to the federal Secretary of Agriculture. Only after the Secretary of Agriculture approves a state’s plan to license and regulate hemp can that plan go into effect. (Thus, although the sale of certain hemp products in Oregon is legal under state law, it is still illegal under federal law until Oregon presents a plan to USDA and the Secretary of Agriculture approves that plan.)
By way of background, the 2018 Farm Bill includes a specific definition of what qualifies as hemp. Hemp is 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, whether growing or not, with a delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3 percent on a dry weight basis.” All other cannabinoids, produced in any other setting, would remain illegal under federal law. Currently, Oregon has a similar definition of industrial hemp that also stipulates that THC must not exceed 0.3 percent on a dry weight basis.
For states without a plan, the USDA will create a regulatory program under which hemp cultivators in those states must apply for licenses and comply with a federally run program. States that have chosen to restrict hemp can continue to do so; however, no state can prohibit the transportation of qualified hemp products across any state.
Oregon, as is widely known, has adopted laws and regulations governing the production and distribution of cannabis, including both industrial hemp and marijuana. However, there are only advertising regulations for recreational marijuana. The Oregon Liquor Control Commission (OLCC) is responsible for enforcing those advertising restrictions. Prohibited are ads that contain misleading statements, target minors or use cartoonish images, encourage transport across state lines, make claims as to health effects, display consumption of marijuana items or break other restrictions. The Oregon Health Authority oversees medical marijuana, while the Oregon Department of Agriculture (ODA) oversees industrial hemp. A recent telephone discussion with Sunny Summers, Cannabis Coordinator for ODA, confirmed that Oregon currently has no advertising rules in place regarding hemp.
The bottom line is that Oregon broadcasters should be wary of advertising hemp-derived products at this time. Until Oregon goes through the administrative process the 2018 Farm Bill erected, the sale of hemp products still is against federal law. And, of course, since each broadcaster depends on a federal license, the cautious approach would be to forego advertising hemp until its sale in Oregon is legal under both state and federal law. We will check with ODA every few months to see what progress has been made in working through the USDA legalization process.
Section 10113 of the 2018 Farm Bill provides that the new legislation does not preempt or limit any state law that “regulates the production of hemp” or any state law that is “more stringent” than federal law in regulating hemp production. But Section 10114 also provides that a State or Indian Tribe cannot prevent the transportation or shipment of legally produced hemp through its state or territory.
See Or. Admin. R. 845-025-8040.