On October 31, the US Department of Agriculture published in the Federal Register interim rules governing the production of industrial hemp under the provisions of the 2018 Farm Act (see the USDA press release here). These rules will allow the USDA to approve state and tribal plans for the regulation of hemp production. It also allows for the USDA to authorize growers in states that have not adopted their own plans (or that have restricted the production of hemp). The USDA notes the interest in hemp production driven by interest in CBD products derived from hemp. While these rules do not address advertising issues specifically, they do ease some of the concerns that many broadcasters and other media companies have had about advertising CBD products when it was unclear that the production of those products was legal. We wrote about some of those concerns many times, including in our posts here and here.
These interim rules recognize that CBD products can already be legally produced under provisions of the 2014 Farm Act. As we noted here, that Act authorized experimental production of hemp products. The 2014 Act also permitted research into commercial exploitation of hemp products – probably permitting greater production than Congress or the USDA expected when the Act was adopted. The October 31 public notice states that production under the 2014 Act will be allowed to continue for the next three years until permanent rules implementing the 2018 Act are adopted. In fact, the USDA notes that it expects that over 50% of hemp production will be by those operating under these grandfathered 2014 licenses for the next year. This seems to recognize that a significant amount of production already underway is in fact legal under federal law, ameliorating some of the concerns as to whether CBD products now being sold could have been legally produced.