By Dustin Robinson, Esq. CPA
With the tremendous growth in CBD demand, my phone has been ringing non-stop with calls from different business-owners looking to cash in while also remaining compliant with the law. But there is one group of businesses in particular that do not have clear legal guidance on how to legally sell CBD products in Florida: non-packaged food suppliers.
Florida Statute Section 581.217, effective June 2019, delegates authority to the Florida Department of Agriculture and Consumer Services (“FDACS”) to create a framework for legally growing, processing, and selling hemp-derived products. Pursuant to that authority, FDACS has taken a position in the Proposed Hemp Rules that is contrary to federal law by allowing food establishments to sell CBD- infused foods. While FDACS has broad authority with respect to the hemp program, there are certain provisions in Florida Statute Section 581.217 that put certain limitations on FDACS’s authority. The provision that has received the most attention is the requirement in Florida Statute Section 581.217 that a grower “only use hemp seeds and cultivars certified by a certifying agency or a university conducting an industrial hemp pilot project.” FDACS has openly expressed its frustration with not being able to draft a hemp seed program that does not require certified seed from a certifying agency; with only 10 companies in the country selling certified seed, this legislative overreach will undoubtedly be a huge obstacle for the Florida hemp industry.
However, an issue that has received much less attention is the requirement in Florida Statute Section 581.217 that any hemp extract sold in Florida be “distributed or sold in packaging” (emphasis added). Florida Administrative Rule 5k-4 explicitly adopts the Federal Code relating to Food and Drugs. The Federal Code defines “packaged” as follows:
“(1) ‘Packaged’ means bottled, canned, cartoned, bagged, or wrapped, whether PACKAGED in a FOOD ESTABLISHMENT or a FOOD PROCESSING PLANT.
(2) ‘Packaged’ does not include wrapped or placed in a carry-out container to protect the FOOD during service or delivery to the CONSUMER, by a FOOD EMPLOYEE, upon CONSUMER request.”
So, under Florida Statute Section 581.217, it appears that food establishments are not allowed to sell non-packaged cbd-infused food products. When I called FDACS several weeks ago, I was surprised to hear that I am pretty much the only individual asking for guidance regarding this issue. This leads me to believe that restaurants, coffee shops, and other non-packaged food suppliers are simply unaware or ignoring the Florida Statute (not to mention being out of compliance with FDA law). Through my numerous calls with FDACS, FDACS has confirmed that coffee shops planning to sell non-packaged cbd-infused coffee and restaurants planning to sell non-packaged cbd-infused meals will need to take the appropriate steps to remain compliant. My correspondence with the Florida Department of Business and Professional Regulation (“DBPR”), the agency responsible for regulating restaurants and temporary events, also confirmed that restaurants planning to sell cbd-infused food and temporary events planning to sell cbd- infused food will need to take the appropriate steps to remain compliant.
To assist with a compliant footprint for non-packaged cbd-infused food suppliers, I have partnered with my client Regulated Solutions, which is a company that specializes in throwing events with legal on- site cannabis consumption in states that allow it. With Regulated Solutions’ long history of throwing huge events where legal cannabis consumption was taking place and with my knowledge of the cannabis law, we are creating some creative SOP’s and strategies that non-packaged food suppliers can implement to remain as compliant as possible with state law.
Unfortunately, these SOP’s and strategies are not bullet-proof; and the only way a non-packaged cbd-infused supplier can be 100% confident that they are compliant with state law is through an amendment to Florida Statute Section 581.217 in the next legislative session. For all of you non-packaged food suppliers, I implore you to let your voice be heard at the next legislative session so that we can have clear guidance to keep you compliant. While the packaging requirement may not be as important as the certified seed requirement, both issues are extremely ripe for a legislative revision!
Dustin Robinson, Esq. CPA, Founding Partner, Mr. Cannabis Law, can be reached at firstname.lastname@example.org or (954) 258-6084 or visit www.mrcannabislaw.com.