Iowa AG warns of potential criminal actions against CBD marketers

Iowa law considers CBD a Schedule I controlled substance, according to a statement from the office of Attorney General Thomas J. Miller.

“Because CBD is derived from parts of the cannabis plant that are included in [the] definition of marijuana, CBD is considered marijuana under Iowa law,” Miller’s office advised this week. “Iowa law places both marijuana and its psychoactive component, tetrahydrocannabinols (THC), in Schedule I of the Uniform Controlled Substances Act.”

The statement warned “local law enforcement agencies retain the authority and discretion to take criminal enforcement action against people who sell or possess over-the-counter CBD products.” Miller’s office also “has the authority to take enforcement action against any person for false or misleading advertisements or deceptive sales practices related to CBD products,” the statement added.

The only exceptions to the prohibition above are FDA-approved medicines and Iowa’s medical CBD program, which the Iowa Department of Public Health administers, Miller’s office said in a related consumer alert in response to hundreds of questions fielded by state agencies related to the compound’s legality.

Iowa Gov. Kim Reynolds in May signed a bill into law authorizing the production of hemp, but the law removing hemp and hemp products from the list of controlled substances won’t take effect until after USDA approves Iowa’s state plan, Miller’s office said.

States and Indian tribes don’t need to submit plans to USDA until the agency adopts its regulations, according to USDA’s Agricultural Marketing Service in a Feb. 27 notice to industry. USDA intends to promulgate hemp regulations in fall 2019 in time for the 2020 growing season.

Deference to federal law

Iowa officials warned CBD products won’t necessarily be legal even after they are removed from the list of controlled substances under state law. Section 7 of the Iowa Hemp Act (Senate Fill 599) stated, “To the extent consistent with applicable federal law, a derivative of hemp, including hemp-derived cannabidiol, may be added to cosmetics, personal care products, and products intended for human or animal consumption.”

But as Iowa officials noted, FDA has maintained CBD and THC cannot be marketed as a dietary supplement or added to conventional food.

“When the Iowa Hemp Act becomes fully implemented and effective, these products will remain illegal under” state law, the office of the state attorney general added.

Miller’s office linked to an FDA Q&A and statement that FDA is exploring a potential pathway for conventional food and dietary supplements containing CBD.

Regulatory notices

In a regulatory notice in May, the Iowa Department of Inspections and Appeals warned food establishments that offer food containing CBD, or food processing plants that manufacture or distribute such products, are in violation of state law. Food, the inspections department said, includes dietary supplements.

“Foods containing CBD found on the premises of a food establishment or food processing plant are subject to an embargo, or removal from sale or distribution,” the notice cautioned.

In a separate regulatory bulletin, the state Alcoholic Beverages Division said CBD and THC are prohibited in alcoholic beverages sold in Iowa. The holder of an alcohol license who violates rules or laws may be subject to administrative sanctions and criminal penalties, the bulletin advised.