The rules regarding mailing CBD and hemp-based products have changed. Last week, the United States Postal Service (“USPS”) released new mailing standards for “products derived from cannabis and industrial hemp” in light of Congressional and Departmental clarification that interstate commerce of hemp is expressly permitted. The USPS apparently intended to grant broader permissions with respect to mailing CBD and hemp-based products (which include CBD, when the THC concentration does not exceed 0.3%), but whether the regulations have become more clear as a result of the revision to Publication 52, Part 212, is – like most federal action surrounding cannabis – muddled, at best.
What is clear is that, when mailing CBD and hemp-based products, mailers are responsible for compliance with all laws and regulations regarding mailability, and – under this new revision – mailers are responsible for retaining documentation demonstrating they are in fact complying with all such laws. That means that mailers will not be required to present documentation at the time of mailing, but that documentation demonstrating compliance may be required at a later date – such as if your package gets intercepted because of concerns over the mailability of the items inside, or that the recipient is ineligible to legally receive it.
What documentation mailers of CBD and hemp-based products are required to retain is less clear. Originally, the USPS issued a strict internal policy outlining specific acceptance criteria for CBD and cannabis-based products. Mailers were required to provide the following documentation:
- A signed self-certification statement, subject to the False Statements Act, printed on the mailer’s own letterhead, which must include the text “I certify that all information furnished 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.”
- Evidence that the industrial hemp producer from which the product originated possesses a license issued by the Department of Agriculture, and for the state where the Post Office from which the package is sent is located, and which identifies the producer by name, as well as demonstrating the mailer is authorized by the registered producer to market products manufactured by that producer.
- Evidence that 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.
The USPS received many inquiries requested clarification of the above rules. The June 6 Postal Bulletin attempted to clarify these rules, and released what appears to be both substantively (the documents and information they must show) and also procedurally (proffering all of this information at the time of mailing, versus just retaining it somewhere in your files at home in case any one should ask) less restrictive guidelines for the shipping of CBD and hemp-based products.
Under the June 6 regulations, the mailer of CBD and hemp-based products must:
- Comply with all applicable federal, state, and local laws (such as the Agricultural Act of 2014 and the Agricultural Improvement Act of 2018) pertaining to hemp production, processing, distribution, and sales; and
- Retain records establishing compliance with such laws, including laboratory test results, licenses, or compliance reports, for no less than two (2) years after the date of mailing.
These guidelines apparently make mailing CBD and hemp-based products via USPS far easier. But what documentation a subsequent inquirer might request from the mailer is far less clear. Therefore, the duty is on the mailer to ensure that the products they mail comply with all laws. Companies should immediately implement internal policies and procedures to ensure that this required documentation is stored for the minimum two-year period, and readily available to consumers who may ship the product to their friends and family, or part of their business, as well, falling under the purview of USPS Publication 52, Part 212. Consumers should also demand cannabis companies update their external policies, as well as their websites, to ensure that integrous hemp-based companies will take on this burden of maintaining and providing the required information, assuring consumers that their products are safe and legal to use, sell, and share.
Mailers should always consult with a knowledgeable attorney before shipping any CBD and hemp-based products through USPS. It is also important to remember that the shipping of marijuana, which is cannabis with a THC concentrate of 0.3% or above, is strictly prohibited under state (we’ll get to you, Oregon) and federal law.