USPS Issues Guidelines for Mailing CBD
Mailing cannabis products has always been hazardous and mostly illegal. Even lawful hemp and CBD shipments have routinely gotten seized. Fortunately, on March 4, 2019 the USPS quietly released a guide to mailing hemp derived CBD.
In the “BMA Advisory: Acceptance Criteria for Cannabidiol (CBD) Oil and Products Containing CBD“, a copy of which is embedded below, the USPS acknowledges the legal status of hemp derived CBD and provides temporary “acceptance criteria” for demonstrating when a mailing is compliant with the 2014 Farm Act. According to the USPS, a mailing is compliant when it contains the following documentation:
“1. A signed self-certification statement, subject to the False Statements Act. Statements must be printed on the mailer’s own letterhead, and must include the text, “I certify that all information contained in this letter and supporting documents are accurate, truthful, and complete. I understand that anyone who furnishes false or misleading information or omits information relating to this certification may be subject to criminal and/or civil penalties, including fines and imprisonment.”
2. The industrial hemp producer possesses a license issued by the Department of Agriculture, for the state where the Post office/ acceptance unit is located, which includes documentation identifying the producer by name and showing the mailer is authorized by the registered producer to market products manufactured by that producer.
3. The industrial hemp, or products produced from industrial hemp, contains a delta-9 THC concentration of not more than 0.3% on a dry weight basis.”
I have no doubt that this guidance was prepared in response to the legal thumping that the USPS got by my friend and colleague Courtney Moran in the KAB, LLC v. UNITED STATES POSTAL SERVICE case for improperly seizing hemp derived CBD products. In that case, decided on September 21, 2018, the Administrative Law Judge found that, “Congress currently permits the interstate sale, transportation, and distribution of exempt industrial hemp pursuant to the most recent appropriations act, I find that exempt industrial hemp and products derived from exempt industrial hemp are mailable.”
The USPS guidance document below acknowledges that the 2018 Farm Bill is now law, that once “fully implemented” it will “modify the mailability criteria for CBD and other cannabis products“, and that the instructions it provides are “temporary“. In other words, the USPS is saying that the regulatory framework for hemp under the 2018 Farm Bill has not yet been created (ie, “fully implemented”), but that when it is in place the USPS will further loosen guidelines and restrictions on mailability of hemp and hemp products, including CBD.
The fact is that none of the above is actually required under the 2014 or the 2018 Farm Acts. It is legal to mail lawful hemp and CBD regardless of whether a package containing them has the documentation and information discussed above. However, the USPS appears to be creating a method for allowing more packages to be mailed which otherwise may have been seized or temporarily detained pending further inspection. For this reason, following these guidelines currently appears to be both smart and pragmatic.
Many thanks to my friend and client Justin Fakler of Icaro Plant Science and Rogue Family Farms for sharing this document with me. Justin is, and always will be, a personal VIP.
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March 12, 2019
Rod Kight is an attorney who represents lawful cannabis businesses. He speaks at cannabis conferences across the country, drafts and presents cannabis legislation to foreign governments, is regularly quoted on cannabis matters in the media, and maintains the Kight on Cannabis legal blog, where he discusses legal issues affecting the cannabis industry. You can contact him here.
Thank you, great info! Regarding point #2, “The industrial hemp producer possesses a license issued by the Department of Agriculture, for the state where the Post office/ acceptance unit is located…” , is that the sender’s state or the receiving state? For example, if I’m a producer with a hemp handler license from the NV Dept of Ag where I am located, is that sufficient to mail interstate or do I need a license in each state I’m sending the products to? Thank you!
Thank you for your comment, Taiya. This point (#2) is fairly unclear in the USPS guidance document, but the “Post office/ acceptance unit” appears to be the one located where the mailer is located (ie, you). Since you raised a question about Point #2, I thought I’d also include a question posed on my law firm’s Facebook site by Hemp Report, along with my response: Hemp Report- “OK, so how do retailers ship products that contain CBD? Retailers are not licensed by departments of agriculture.” Me- “Great question. The short answer is that Point #2 by the USPS does not make much sense in the real world. Additionally, from a practical standpoint the USPS does not have a history of seizing finished hemp/CBD products. Rather, it tends to seize hemp flower/biomass and, to a lesser degree, CBD isolate. It is easier to comply with #2 when shipping these products, as opposed to finished goods. Finally, I would take the position that the “producer” is the farmer and that you can comply with this requirement by including the farmer’s state-issued hemp registration/ license in the mailing. Showing that you are authorized by the producer to market the products could be a simple letter from the farmer; however, in the real world sellers of finished goods do not often have a direct relationship so getting a letter is impractical, if not downright impossible. In these circumstances, simply comply as best you can and know that (a) these requirements are not part of the statute, and (b) finished goods rarely get seized. As with most things hemp/CBD this government “guidance” provides some clarity while also creating some additional confusion.”
Much appreciated! Thank you for taking the time to respond and keep us up to date on these important issues.
Would a licensed Industrial Hemp grower sending a field sample via USPS to a testing lab for THC/CBD testing be ok? Thanks.
Good question, Henri. I see no reason why the answer would be anything but “yes”.
And another question for you sir – in my experience, sees goods are usually detained, I notice is sent to the receiver, and unless anyone takes action they are destroyed. If you put this letter inside a package, how does it help the situation in that instance? Would it make any sense to provide this information in a packet outside of the envelope or a sticker attached to it? “100% Legal Hemp Products with proper documentation inside” And perhaps a link to a website page that contains the same documents that are inside? Or is that just going to draw extra scrutiny?
Aaron- Thank you for your question. The answer is, “yes”, I do no believe that a sticker could be helpful. (Although, as you point out, it may draw scrutiny.) As for the instance in which the products are detained, I think that most receivers will reach out to the mailers when they do not receive the package in due course. -Rod
Thanks! Really appreciate your insights. I figure we should be transparent as possible, while at the same time offering discrete packaging for consumers. It is a delicate balance!
You nailed it, Aaron.
Mr. Kight, I was told myself by the postmaster general of Portland, to include a phone number under the return address so they have a way of contacting the sender or receiver efficiently. Otherwise they have to look it up on line and some have websites some don’t and most address dont have a landline registered to it. She told me this is just a way to speed up a detained package. My package of hemp flower then arrived to us 1 day late.
Thanks for sharing this tip, Pam.
The post office intercepted me recently. I provided the three pieces of documentation for their files and they then accepted my cbd tincture bottle for mailing. The next day I brought the same padded envelope with a tincture bottle in it to the post office, only to be denied again! Now, apparently, bubble wrap envelopes are no longer accepted. One needs a box to mail cbd oil. You might run into that scenario as well.
Thank, Ray. This is very helpful. -R
Rod – thank you for your work on this issue. On March 18, 2019 we had samples seized & sent to the postal inspector whereupon we were informed they would be destroyed and in short there was nothing we could do about it. Mind you contacting the correct people at USPS to discover these facts is a good 4-6hr task. Using the information you provided in this and your other posts, we sent the postal inspector the following letter which resulted in the samples being released the next day. Thank you – hopefully your readers can use a similar format with the same result.
March 21, 2019
To: US Postal Service and US Postal Inspector:
Be advised this letter places the United States Postal Service on legal notice, please act accordingly.
Statements of Fact
1. On or about Monday 3/18/2019, USPS seized a package of industrial hemp samples (the “Package”) we sent to Praxis Labs 327 North Tower Ave Centralia, WA 98531, Tracking No. XXXXXXXXXXXXXX.
2. The industrial hemp in the Package was third party tested and demonstrated THC content below .3% by dry weight (see attached certificate of analysis).
3. Praxis is a Washington State laboratory licensed to test industrial hemp.
4. On or about Tuesday 3/19/2019 I contacted Louis Meadows three times at USPS Centralia by telephone and once by email explaining we are a XXXX State licensed industrial hemp grower in Utah, Lic # XXXXXX, and provided Mr. Meadows the details noted in #1-3 above. See XXXXXXXX LLC Industrial Hemp License attached.
5. On or about Wednesday 3/20/2019 I spoke with Jeff McClane US Postal Inspector, Seattle explaining details of #1-4 above.
6. On or about September 21, 2018 in KAB LLC v. UNITED STATES POSTAL SERVICE the court stated:
“Congress currently permits the interstate sale, transportation, and distribution of exempt industrial hemp pursuant to the most recent appropriations act, I find that exempt industrial hemp and products derived from industrial hemp are mailable.”
7. On or about March 4, 2019 US Postal Services adopted “BMA Advisory” titled “Acceptance Criteria for Cannabidiol (CBD) Oil and Products Containing CBD”.
DEMAND FOR RELEASE OF PACKAGE AND REIMBURSEMENT
FOR PRIORITY MAIL POSTAGE
Our Package was seized by USPS and is being held in violation of legal precedents, US Postal BMA Advisory issued on or about March 4, 2019, the 2014 Farm Bill and the 2018 Farm Bill. It is hereby demanded USPS return Package to sender and refund the priority postage paid on Package. Failure to comply with this demand will result in swift legal action against all parties concerned.
SELF CERTIFICATION STATEMENT
SUBJECT TO FALSE STATEMENTS ACT 18 U.S. Code § 1001
I certify that all information contained in this letter and supporting documents are accurate, truthful, and complete. I understand that anyone who furnishes false or misleading information or omits information relating to this certification may be subject to criminal and/or civil penalties, including fines and imprisonment.”
Regards,
Thanks, Keith. I appreciate you sharing your experience and letter and am glad to hear that you were successful. -R
Pertaining to the rules listed above, I am not a producer nor seller, but I do have a card. This being said, do the same legalities count if you are not a business owner or producer?
Good question, Amber. The USPS guidelines apply to hemp shippers.
Dear Mr. Kight,
I live in a state that recently legalized medical marijuana (Arkansas); however, I would like to get independent laboratory analysis of the product(s) before I consume (e.g., THC, CBD content and possible pesticide contamination). There are no suitable independent laboratories in my state. Is it possible to prepare small volumes of extracts and send them legally via USPS or UPS/FedEx to an out of state laboratory? Many thanks for any advice you can provide.
Good question. The answer is fairly straightforward, though it may not help you. If the product is a hemp product (ie, derived from “hemp” as that term is defined in the 2018 Farm Bill) then you may send it to an out of state testing lab. This is because hemp and hemp products are federally lawful. However, if the product is derived from marijuana it may not be shipped out of state. This is because marijuana is federally illegal.
So, we were recently told to stick with USPS because FedEx and UPS are private shippers and nothing stops them from withholding any package they want for any reason, inspecting it, and handing it over to law enforcement and being somehow exempt from lawsuits. I don’t know the facts or details to support that. As far as the USPS goes, in Oregon, we have been suffering massive delays, packages detained without cause (assuming they knew what was being transported by our paperwork vs. any smells as it was sealed material?), and in any fight for a refund: nothing. We are now having to charge buyers the guaranteed refund price (not even knowing if the post office will honor it), with 100% transparency that their package may not arrive. We’re now in battles with customers who are livid with paying for expedited shipping and the post office pulled their boxes. Now, we’re considering a disclaimer and some sort of an attachment to the front of the box stating what it is (California Department of Food and Agriculture has specifically told us that is required as per: California Code, Food and Agricultural Code Section 6421). We include ALL of our paperwork! Otherwise, we’re not sure what else to do. It’s almost becoming financially damaging to us to not be able to ship industrial hemp to customers. And, considering that our material is 0.02% delta 9, literally 10% of the legal limit, this is ridiculous. Our letter (thanks to this website for the correct format and details to include), is very detailed, very specific, and we now use it as a template for all of our products and the postmaster at the post office has been very appreciative of just how precise and clear our format is. Any ideas or updates on this dilemma would be great to know. I’d love to see this article keep expanding!
Hey buddy my business creates %100 CBD cigars wrapped with the hemp leaf.
Want to be able to send across the States but super concerned about it at the same time.
Thanks for your comment, Nathan. I cannot give any specific legal advice on this forum, but would be happy to speak with you. Generally, the 2018 Farm Bill authorizes interstate commerce in hemp and hemp products and prohibits a state from interfering with interstate transportation of hemp and hemp products: https://www.govtrack.us/congress/bills/115/hr2/text
I have been shipping through USPS for a year and a half now and have not had any problems. A usps rep approached me at a hemp convention last year and provided me with great information about shipping hemp with them. I have had very little problems. Mostly small direct to consumer products.
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