The Evolving Legal Landscape of Importation of Hemp Products and Dealing with the Customs and Border Protection

While the Government has traditionally made simple matters in the hemp market complex, Robison Law Group questions whether the whether the legal landscape sounding the importation of hemp and hemp products has changed. Last December, the U.S. Congress passed, and President Donald Trump signed, the “2018 Farm Bill,” which removes hemp-derived CBD as well as all “extracts, cannabinoids and derivatives” of the hemp plant from the purview of the Controlled Substances Act.

Various stakeholders are debating what provision of the Agriculture Improvement Act of 2018 (also commonly known as the 2018 Farm Bill) are in effect and what provision will become effective once the USDA promulgates regulations or states receive USDA approval for their agriculture pilot program. We think at least one issues is clear: hemp is no longer a controlled substance and Customs and Border Protection should reevaluate the admissibility of hemp and hemp products.

Under the Agriculture Improvement Act of 2018 (also commonly known as the 2018 Farm Bill, as indicated above),

The term ‘hemp’ means 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 concentration of not more than 0.3 percent on a dry weight basis. Agriculture Improvement Act of 2018, Sec. 10113 amending Sec. 297A of the Agricultural Marketing Act of 1946 (7 U.S.C. 1621 et seq.).

This law legalized hemp federally. In addition, Congress modified the definition of marijuana under the Controlled Substances Act. Specifically, “The term ‘marihuana’ does not include—(i) hemp, as defined in section 297A of the Agricultural Marketing Act of 1946.” Agriculture Improvement Act of 2018, Sec. 12619 amending 21 U.S.C 802(16).

The term THC or tetrahydrocannabinol is also modified under the Controlled Substances Act to exempt the THC found in hemp. The Agriculture Improvement Act of 2018 states,

“Schedule I, as set forth in section 202(c) of the Controlled Substances Act [and] (21 U.S.C. 812(c)), is amended in subsection (c)(17) by inserting after “Tetrahydrocannabinols” the following: “, except for tetrahydrocannabinols in hemp (as defined under section 297A of the Agricultural Marketing Act of 1946)”. Agriculture Improvement Act of 2018, Sec. 12619 amending 21 U.S.C § 802(c)(17).

I think the above applicable law speaks for itself—hemp and hemp derived cannabinoids are not controlled substances. In spite of the law that clearly applies, commonly uses the following laws and regulations to justify seizure and destruction of hemp merchandise.

  • 9 USC § 1595a(c)(1)(B) – This U.S. Code is inapplicable because the Controlled Substance Act excludes cannabinoids derived from hemp.
  • 21 USC § 952 – This U.S. Code is inapplicable because hemp is not scheduled under the Controlled Substance Act.
  • 21 USC § 813 (“A controlled substance analogue shall, to the extent intended for human consumption, be treated, for the purposes of any Federal law as a controlled substance in schedule I”). This U.S. Code does not apply to this merchandise as hemp is not a controlled substance and, therefore, not an analogue.
  • 19 CFR § 162.45a. Summary forfeiture is not applicable to hemp as it is not a controlled substance.
  • 21 USC § 881(f). This U.S. Code is inapplicable because the merchandise is not a schedule I or II substance and to unilaterally lump it into a category of dangerous, toxic, or hazardous raw materials is absurd.
  • 21 USC § 952. This U.S. Code is inapplicable because it is not a controlled substance.
  • 19 CFR § 162.45a. This regulation is an applicable because not a controlled substance.

There comes a time when a government agency needs to take a step back and reevaluate its approach to clearing hemp related merchandise into the United States. That time is now.

Mr. Robison is an attorney and U.S. Customs Broker licensed with the Department of Homeland Security.