Effective June 6, 2019, the United States Postal Service (USPS) revised its rules and regulations to provide new mailing standards for hemp and products derived from hemp – identified by the USPS as "Hemp-based Products."
The full postal bulletin, including the hemp-based products clarification, can be accessed here. As a result, the USPS now recognizes that some products derived from hemp (as that term is defined in the Agricultural Improvement Act of 2018) can be lawfully mailed when:
- The mailer complies with all applicable federal, state, and local laws (such as the Agricultural Act of 2014 – also known as the 2014 Farm Bill – and the Agriculture Improvement Act of 2018 – also known as the 2018 Farm Bill) pertaining to hemp production, processing, distribution, and sales; and
- The mailer retains records establishing compliance with such laws, including laboratory test results, licenses, or compliance reports, for no less than 2 years after the date of mailing.
The USPS guidance is clear. The hemp and hemp-based products being shipped must have been lawfully produced in accordance with all applicable state and federal laws. And, the mailers are responsible for their own legal and regulatory compliance obligations. Hemp and CBD farmers and businesses should continue to give careful attention to their local licensure, cultivation, and production requirements – and avoid producing or shipping any products that exceed the federally defined 0.3% delta-9 tetrahydrocannabinol level for hemp.
The USPS previously required mailers of hemp-derived products to sign and submit a self-certification statement about the products being shipped, subject to the False Statements Act, prior to mailing. Now, persons and companies will no longer be required to present documentation at the time of mailing hemp and hemp-based products. But, the USPS may request that the mailer produce documentation to show the lawfulness of the products at a later time if any doubt arises about the item's mailability or the addressee's ability to legally receive it.
It is impossible to tell at this time if interstate shipments of hemp and hemp products will continue to be seized or delayed while in transit. But, this guidance is another positive step for the industry and it follows the U.S. Department of Agriculture's recently issued opinion that hemp and hemp-based products are legal and can be legally shipped or transported between states. For now, it is imperative that hemp and CBD businesses continue to keep detailed records for all products and shipments for at least 2 years after the date of mailing. Farmers and businesses should incorporate this record retention requirement into their compliance practices and policies going forward.
The laws, regulations, policies, and practices surrounding hemp and hemp-derived products are continuing to change – and they often vary widely from state-to-state. We encourage anyone involved (or considering involvement in) the hemp and hemp-derived CBD industries to seek the advice and assistance of knowledgeable legal counsel. Ward and Smith's Hemp Law team is committed to the industry and available to assist, providing full-service legal representation to market participants on these and other complex legal issues.
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This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.