The ‘Midwest Turnabout’: a CBD Trend?

Turnabouts on CBD policy: an emerging trend?

The “Midwest Turnabout”, the name I’m giving to a rapid about-face on CBD policy that started with Indiana, appears to be turning into a trend.

Exhibit A: Wisconsin. On May 10 Wisconsin Attorney General (AG) Brad Schimel announced that farmers who grow industrial hemp under the state’s pilot program will not be prosecuted for producing cannabidiol (CBD) oil. This announcement came in the immediate wake of his meeting with the Wisconsin Farm Bureau Federation (WFBF), the state Department of Agriculture (SDA), Trade and Consumer Protection (TCP), and state legislators. What is striking about this announcement is that it is a complete turnabout from an April 27 unclassified Analytical Note by the Wisconsin Department of Justice (DOJ) and Wisconsin Statewide Intelligence Center (WSIC) stating that CBD was unlawful in the state. In a mere two weeks Wisconsin flipped from being a CBD pariah to a CBD haven.

Exhibit B: Indiana. A similar turnabout recently occurred in Indiana. On November 21, 2017 Indiana AG Curtis Hill issued an opinion stating that, “No one in Indiana is authorized to sell cannabidiol under Federal or State law, and therefore, any retail establishment selling anything that contains cannabidiol is in violation of the law.” Then, on March 21, 2018, a mere  four months later (though a lifetime compared to Wisconsin’s flip), Governor Eric Holcomb signed into law a bill legalizing the sale and use of CBD oil. Specifically, he signed Senate Bill 52, making “low THC hemp extract” lawful if it is derived from industrial hemp grown under Indiana’s pilot program or the pilot program of another state, has delta-9 THC concentrations that do not exceed 0.3% (including precursors), and contains no other controlled substance. Much like Wisconsin, Indiana went from being a pariah to a haven overnight. In fact, because Indiana’s new law created much needed labeling requirements it has emerged as a budding regulatory leader in the rapidly emerging consumer market for CBD derived from industrial hemp.

(Possible) Exhibit C: Michigan. The same day that Wisconsin was publicly announcing its newfound support for CBD its neighbor, Michigan, came out against it. On May 10 the Michigan Department of Licensing and Regulatory Affairs (LARA) and the Bureau of Medical Marihuana Regulation (BMMR) released an Advisory Bulletin to “clarify” how CBD and industrial hemp are regulated. After a rambling and disjointed discussion of CBD and “marihuana”, the Bulletin concludes by stating, “The Industrial Hemp Research Act limits industrial hemp to cultivation or research and does not authorize its sale or transfer.

Will Michigan soon do the Midwest Turnabout? I suspect that it will. However, the answer to that question will depend on a number of factors, the most important being public outcry. In the wake of both the Indiana and Wisconsin policy shifts there was a significant amount of public pushback. This is not surprising. According to a recent Wisconsin poll 59% of state residents favor “legalizing marijuana like alcohol”. Meanwhile, 73% of Indiana residents favor legalizing marijuana for medical use. CBD from industrial hemp, which has much less of a stigma than adult use or even medical marijuana, has even greater public acceptance.

Another factor is the particular legal posture of the state. Indiana fixed the AG’s opinion by quickly enacting new laws. Wisconsin, on the other hand, did not change its laws. Rather, it simply changed its policy. As we just saw, this is something that can be done in a matter of weeks. Michigan is a strange case. On the one hand, it has a medical marijuana program and so its residents clearly accept that cannabis has medical utility.  For this reason, I expect a strong pushback to the Advisory Bulletin. On the other hand, its industrial hemp laws are overly restrictive and may require a legislative overhaul of them in order to pull off a Midwest Turnabout. Whether this will be an easy task remains to be seen. Given the existence of its medical marijuana program (MMP) and the built in acceptance factor that it brings this may be easy. However, I wouldn’t be surprised to see some resistance by MMP stakeholders who may prefer that CBD not be available to the general public in order to maintain greater market share of the overall medical cannabis business. I’ll be watching closely to see how this plays out.

In the end, the Midwest Turnabout may be a short-lived fad anyway since the Hemp Farming Act of 2018, if enacted, will make hemp derived CBD legal at the state level in all 50 states. As much as I enjoy watching states pull off the Turnabout, I’d prefer that the maneuver be unnecessary to begin with.

A version of this article was originally published in the Cannabis Law Report, May 13, 2018. Thanks to Sean Hocking, John Taylor, and the entire CLR group for their excellent journalism about the cannabis industry.

Rod Kight is a lawyer based in Asheville, NC. He is licensed in North Carolina and Oregon and represents legal cannabis businesses. You can contact him by clicking here.

11 comments on “The ‘Midwest Turnabout’: a CBD Trend?Add yours →

  1. Thanks for all the updates. I rely on your blog to keep abreast of all the changes happening. You are an excellent source of info. Keep up the good work!!

  2. Thank you for this article, however we need to know is it legal or illegal in Michigan? How can they jump instantly to make a law without due process, when it was in a grey area? And why not challenge this and have a public petition to reverse this immediately, instead of waiting for the Michigan lawmakers mercy for the Michigan people?

    1. You make good points. Unfortunately, in MI the industrial hemp statute is strict and limited in scope. I encourage you to contact your legislator.

  3. So I am here in Michigan and what I was told by LARA is if it says CBD on the label it is illegal but going in to Better Health and I’m not sure if your familiar it’s like a Whole Foods I was told it doesn’t apply to them because there is 0% THC in it! I have read your article and thank you for posting so can headshops sell it? I am sorry I am still confused!

    1. Thank you for reading and reaching out, Suzy. The Michigan issue is frustrating and complex. The Advisory Bulletin issued by LARA last week spends almost all of its time addressing extracts of marijuana. It is only the very last sentence which brings the legal status of industrial hemp extracts into question. The last sentence states: “The Industrial Hemp Research Act limits industrial hemp to cultivation or research and does not authorize its sale or transfer.” A plain reading of this bulletin makes any industrial hemp product, including extracts containing CBD, unlawful to sell or transfer in MI. Unfortunately, because the MI industrial hemp statute is so restrictive this Advisory BUlletin is probably within the scope of the existing law. I encourage you to contact your legislator and LARA.

  4. I don’t think my first comment posted so forgive me if it is posted twice! I read your article and thank you for sharing but I’m still confused according to LARA (State Of Michigan) anything that says CBD on it is illegal according to Better Health if you are not familiar it is like a Whole Foods the rules do not apply to them because their products have 0% THC! Everyone has a different answer so can we in headshops carry CBD! Thanks again

  5. I hope I’m not intruding on, please look st 2010 decision by one of the MI 😍Legislators
    “ADVISORY BULLETIN
    May 11, 2018 (Updated)
    Cannabidiol (“CBD”) and Industrial Hemp (“Hemp”) Products
    Cannabidiol (CBD) comes from the marihuana plant. Based on the statutory definitions related to “marihuana” found in the Michigan Public Health Code (Act 368 of 1978), the Michigan Medical Marihuana Act (MMMA), and the Medical Marihuana Facilities Licensing Act (MMFLA), any extracts of marihuana or extracts of the marihuana plant will continue to be treated as marihuana.
    The possession, purchase, or sale of marihuana or any marihuana product – including CBD – must be done in compliance with the MMMA and MMFLA.
    The cannabis plant has over 100 cannabinoids – one of which is cannabidiol (CBD). Cannabinoids are most abundant in the flowering tops, resin, and leaves of the cannabis plant and are not found in parts of the cannabis plant that are excluded from the definition of marihuana, except for trace amounts – typically, only parts per million – that may be found where small quantities of resin adhere to the surface of seeds and mature stalk, not within the seeds nor the mature stalk. If cannabidiol is found on the seeds or stalks, it is found only as a result of contact with the resin produced by the cannabis plant.
    As defined by Michigan state law, marihuana means:
    • all parts of the plant Cannabis sativa L., growing or not
    • the seeds of that plant
    • the resin extracted from any part of the plant
    • every compound, manufacture, salt, derivative, mixture, or preparation of
    the plant or its seeds or resin Marihuana does not include:
    • the mature stalks of the plant
    • fiber produced from the stalks
    • oil or cake made from the seeds of the plant
    • any other compound, manufacture, salt, derivative, mixture, or preparation
    of the mature stalks
    Hemp is the fiber and seed part of the Cannabis sativa L. plant. The term “hemp” is only used in state law as part of the Industrial Hemp Research Act (IHRA). Passed in 2014, the IHRA authorized the growing and cultivating of industrial hemp for research
    This advisory bulletin does not constitute legal advice and is subject to change. Licensees are encouraged to seek legal counsel to ensure their operations comply with the Medical Marihuana Facilities Licensing Act and associated Emergency Rules.

    ADVISORY BULLETIN
    May 11, 2018 (Updated)
    purposes only. The IHRA authorized the Department of Agriculture and Rural Development or colleges/universities in Michigan to grow or cultivate – or both – industrial hemp for purposes of research. The research must be conducted under an agricultural pilot program or other agricultural or academic research project.
    “Industrial hemp” and “Marihuana” are both defined by the Public Health Code as being derived from the plant Cannabis sativa L.
    • “Industrial hemp” means the plant Cannabis sativa L. and any part of the plant, whether growing or not, with a delta-9-tetrahydrocannibinol (THC) concentration of not more than 0.3% on a dry weight basis.
    • “Marihuana” means all parts of the plant Cannabis sativa L., growing or not; the seeds of that plant; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin.
    Marihuana does not include industrial hemp grown or cultivated (or both) for research purposes under the industrial hemp research act. The Industrial Hemp Research Act limits industrial hemp to cultivation or research and does not authorize its sale or transfer.
    This advisory bulletin does not constitute legal advice and is subject to change. Licensees are encouraged to seek legal counsel to ensure their operations comply with the Medical Marihuana Facilities Licensing Act and associated Emergency Rules.

    Thank you

    1. I have read the update version and call me a idiot but I’m getting out of pretty much the same as the May 10th statement!I was just told because of that updated release CBD is legal? I’m sorry but it’s not making any sense to me!

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