The state Department of Public Health regulation requires that all wholesale and retail food must be from approved sources that comply with federal, state and local laws and must not contain any prohibited ingredients.

Many in the relatively new commercial hemp industry are concerned with the state’s policy that prohibits the sale of some products, including CBD oil and infused food products, saying the restrictions put them at a disadvantage with competitors in other states.

The Massachusetts Department of Agricultural Resources, in a June 12 policy guidance statement, gave a list of hemp-derived products that are and are not approved for sale in the state.

Prohibited are food products containing CBD (cannabidiol), products containing hemp as a dietary supplement, animal feed that contains any hemp products and any product containing CBD derived from hemp that makes therapeutic or medicinal claims.

The policy, which is in conjunction with that of the state Department of Public Health, which regulates food manufacturing, adheres to the guidelines of the Federal Drug Administration. The DPH regulation requires that all wholesale and retail food must be from approved sources that comply with federal, state and local laws and must not contain any prohibited ingredients.

The FDA prohibits the addition of CBD to food products because CBD is an active ingredient in an FDA-approved drug. Because CBD is not an approved ingredient under federal law, it is prohibited from being added to manufactured foods.

The FDA, however, has said that hulled hemp seeds, hemp seed protein and hemp seed oil, which Massachusetts allows, are generally recognized as safe. Hemp plants cannot contain more than 0.3% of THC (tetrahydrocannabinol), the psychoactive ingredient in cannabis.

Since the policy statement was issued, Beverly Barish has taken products, including CBD oil and infused edibles, off her shelves at her Wicked Chronic stores in Natick and at 510 Boston Turnpike (Rte. 9) in Shrewsbury.

She and others said they thought the state would have allowed the now-prohibited products in light of the position of the federal government, similar to what the state does with its recreational marijuana law.

“We have had to remove all our edibles from our shelves. And we’re still in the process of going over every single one of our products,” Barish said last week. “Since all this happened, most of us are reeling and trying to figure this out. We all want to work with MDAR and DPH to make sure our businesses are going to continue to thrive. And also to ensure that products are safe and pure.”

She said the manufacturer that she buys from gives her a statement showing that the products have been tested for purity. In addition, before she puts them on her shelves, she also tests for impurities like mold and pesticides.

The FDA is weighing how to regulate products with CBD. The agency held a public hearing on May 31. Among the FDA’s concerns are long-term health effects and appropriate dosage. Its first CBD product approved in 2018 is for certain types of epilepsy. The agency said adequate and well-controlled clinical studies resulted in that approval.

Waiting for new regulations

Nial DeMena, of Manna Molecular Science LLC in Worcester, which was first licensed in 2018 to produce hemp-derived products, said he’s waiting until the FDA issues new regulations.

He said he feels the FDA and the MDAR are moving cautiously but quickly to provide the industry with clarity. His company has been preparing the equipment to produce items like infused beverages, if things change.

“We’ve been waiting for the FDA to provide guidance,” he said. “If we had set something up and then have to tear it apart, it would have been more costly and inefficient for us than not do do it and slow-go in the first place.”

But others don't want to "slow-go" it in the fast-growing, lucrative industry that’s expected to be worth $22 billion by 2022. Two days after the state's policy guidance was issued, a group of hemp industry advocates formed the Massachusetts Hemp Coalition in part to address what it says are restrictions that will hurt the local industry. The Worcester-based group plans to hold a press conference on the steps of the Statehouse from 2 to 4 p.m. Monday to discuss the policy and make some recommendations to state officials.

“We’re interested in making recommendations around what we feel they can implement to support farmers and retailers and to ensure public health and safety,” said Marion McNabb of Worcester, a researcher with a doctorate in public health.

McNabb is also CEO and co-founder of Cannabis Community Care and Research Network, which promotes social justice, research and education in the cannabis field. One of its affiliates is Alternative Treatment for Veterans, a nonprofit organized to gather data on medical marijuana use by veterans and to use that research to push for policy change.

McNabb said the MDAR policy statement stops the sale of some hemp products without offering a pathway for businesses and small farmers to succeed.

“There was CBD and hemp oils before this came out. Retailers do not make claims about health benefits of the CBD oils. It’s not allowed to say that, so these retailers do not say that,” she said. Farmers have planted hemp and processors are geared up, she said, “but, with the lack of ability to sell it, it’s a challenge for the industry and smaller farmers in particular in Massachusetts.”

The MDAR has issued 102 licenses for hemp growers and processors in 2019. There are also 22 pending license applications.

Ensuring level playing field

Brad Mitchell, policy director for the Marlborough-based Massachusetts Farm Bureau, said hemp farmers are very concerned about how the policy will affect the state's new burgeoning industry. He said his group also plans on meeting with MDAR officials.

The bureau’s biggest concern is whether the state will ensure a level playing field by also prohibiting the online sale of these products as well as those manufactured outside the state and sold in local convenience stores and other retail outlets.

“If the policies are enforced uniformly, I don’t think most people will have much to say about it. But if folks are buying from other states, that puts us at a competitive disadvantage. In a new industry there’s a lot of advantage to getting your foot in the door quickly.”

Cary Giguere, director of public health for Agricultural Resource Management for the Vermont Agency of Agriculture, Food & Markets, said many of the hemp-derived products, including most CBD and hemp-infused foods that are prohibited in Massachusetts, are allowed in Vermont and most other states.

He said hemp and hemp-infused food products - except for milk and meats, which are federally regulated - are being sold in grocery stores in Vermont.

“Basically we’re using our discretion with the FDA guidance and allowing dietary supplements and hemp-infused products,” Giguere said. “Maine tried to do what Massachusetts is doing and the governor and Legislature immediately passed emergency rules to allow CBD sales."

Maine Gov. Janet Mills signed the legislation in March to allow the production and sale of food additives and food products that contain hemp or hemp products.

The 2018 Farm Bill, Giguere pointed out, states that hemp with less than 0.3% THC is no longer a controlled substance, including hemp-derived THC. He said states are prohibited from interfering with or restricting interstate commerce of legally produced hemp.

Hemp and CBD extracts from Vermont are coming to Massachusetts, he said.

“The definition of hemp includes extracts, including CBD extracts. All of our producers can provide Certificates of Analysis for each process lot. Currently these COA’s are what is required for the postal service for shipment, including to Massachusetts,” Giguere said.

He finds it odd that Massachusetts is more restrictive on CBD, which isn’t intoxicating, than it is on THC with its recreational marijuana. Vermont has medical marijuana but doesn’t allow marijuana for recreational purposes.

“It feels a little bit like the folks down in Massachusetts who lost the battle on marijuana are taking it out on hemp,” he said.