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.
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.