On this episode of the Ministry of Hemp Podcast Matt sits down with Frank Robison, Attorney at Law who provides legal advice and counseling to a wide array of clients in the cannabis (marijuana and hemp) space including industry, university and not for profit organizations. Frank and Matt have a discussion of the problems facing transporting hemp in the U.S. and abroad.
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Here's some resources from our archives about hemp law and transporting hemp:
Transporting hemp remains legally complex, both across state lines and for international imports and exports of hemp.
Below you'll find the full written transcript for this episode:
Matt Baum: Hello again. My name is Matt Baum and you are listening to The Ministry of Hemp Podcast. And today on the show we are talking about interstate commerce, imports and exports specifically, you guessed it, the importing and moving of hemp. The 2018 Farm Bill all but decriminalized hemp, removing it from its Schedule I drug status, and realizing that this is a cannabis plant with less than 0.03% THC, which means it can't get you high in a nutshell. So now that hemp is legal, farmers, truckers and retailers all live in a state of nirvana where we're celebrating hemp and everyone is happy, right? Well, not exactly. Currently hemp still lives in sort of a gray area while the FDA and USDA figures out how we're going to define it based on how much THC is present, based on what type of isolate is present. There's so much that goes into it. And lucky for us, I found somebody much smarter than me to explain the challenges in something that should be simple, moving hemp around the United States
Meet Frank Robison.
Frank Robison: So like it... My name's Frank Robison. I'm a cannabis attorney, most of my client base are in the hemp business or in hemp. I have some sort of nexus to the hemp industry at various levels, from growers to processors to entities that make and sell hemp products. And some of those clients actually are vertically oriented and they do all of the... They do everything from growth processing, product development to retail sales. I have been practicing in this area of law for about seven years. I started practicing in with 'cannabis law' as very interestingly a state of Colorado, University of Colorado attorney. And I was very... I was immediately attracted to-
Matt Baum: Frank's a pretty amazing guy and he's exactly who we want fighting for hemp in this country, but he also speaks legalese. He's a lawyer and he's good at what he does. So I will break in here and there during our interview to spell some stuff out, break down some acronyms and just clarify things a little bit.
Frank Robison: ... regulation. As I was advising in the export control space, I would inevitably get questions about importations.
Matt Baum: Sure.
Frank Robison: And I figured the best way to have a crash course in importations was to become a US customs broker because [crosstalk]
Matt Baum: Yeah, why not? You got time. It's not like you have a full time job. I mean go for it.
Frank Robison: And so I'm very much of an overachiever in that sort sense. And so because becoming a customs broker is, it's quite a difficult task to do between the US Department of Homeland Security background check and the test you take, it's quite a process to become a US customs broker. And the tests you take has about a 20% passage rate where the average bar exam test has somewhere between 60 maybe 70% passing rate.
Matt Baum: Okay. So that's 80% failure?
Frank Robison: Yes. So you have an 80% failure rate on the US customs broker test.
Matt Baum: Good Lord.
Frank Robison: Yeah. Yeah. It's very difficult. And it's a highly regulated industry. In fact, it's more regulated, from my perspective, than other legal industry and it's regulated... And I think that's appropriate because you have the tools, you have the knowledge, you have the understanding of how to clear products through customs.
Matt Baum: Sure.
Frank Robison: Go with a civic code, with civic code that's associated with any given type of merchandise.
Matt Baum: What Frank is saying is it's very hard to import or export anything in this country. And when you add in the fact that you're importing or exporting hemp, a product that is effectively been illegal in the United States for the last 75 years, the USDA and FDA still haven't quite figured out how we're going to do this. It's pretty damn difficult.
Frank Robison: FDA has a wide range of views on whether or not it's admissible. And when I say a wide range of views is the FDA agent in Cincinnati, Ohio may have a different view than the FDA agent-
Matt Baum: Of course.
Frank Robison: ... managing the port in Denver, Colorado.
Matt Baum: And there's no fixed line-
Frank Robison: And Denver is also a port even though it's-
Matt Baum: ... there's no fixed line or numbers right now. There's no standard so everybody just sort of is kind of calling their shot.
Frank Robison: There is in a way. So right now what I'm seeing is that they're marching to a beat of messages... The messages that the FDA has communicated to the general public after the stakeholder meeting in Maryland at the end of May, and that is consistent with the farm... and is very much consistent with the Farm Bill. It's very much consistent with the FDA's view over the past few years. But the message is pretty consistent. CBD is not a... so CBD specifically may not be put into food according to the FDA or dietary supplements because it would at the time when the FA features first came out, it was an investigative new drug. Now it is a drug in the form of an I-L-X.
Matt Baum: Right. Now, just recently, The US Food and Drug Administration, the USDA approved Epidiolex, which is a cannabidiol or CBD oral solution for the treatment of seizures associated with two severe forms of epilepsy. There were some tests. It's proven to work, but now that means that CBD, it can be considered a pharmaceutical drug. That can complicate things a bit.
Frank Robison: And a drug is per se if included in a food or dietary supplement an adulterant and you cannot put adulterants into food or into dietary supplements. In my view, this is an extreme position to be taking, particularly with respect to cannabinoids, including CBD that are found in whole hemp extract or full spectrum or even broad spectrum. It's when you start getting closer to isolate, I think that the FDA has an argument that it is similar to Epidiolex and may or may not be permissible to import into the United States or export respectively from the United States to any given country. But again, I just think it's an argument in many cases it's just misguided.
Matt Baum: Let me ask you, is it only because in the sense of an isolet, they're saying that this isolet does one thing and therefore the FDA says, well then it is acting as a drug because it is being applied to do one thing only as opposed to a broad spectrum?
Frank Robison: No.
Matt Baum: Is it that simple?
Frank Robison: The comments that I've seen directly from FDA agents in the field have been more even simple than that because it contains CBD. CBD is a drug. A drug is an adulterant when it is included in food or dietary supplement. It's not because you're making the structure function claim. It's not because you have non-compliant packaging. It's because-
Matt Baum: Purely definition, that's it.
Frank Robison: ... It's purely definitional. That is correct. And where I see the seizures happening, it's when it's packaged in a finished form, like when it's packaged in a consumer-ready form. Or I also see seizures with respect to isolate. I think that the FDA has an, again, an argument, it has an opinion that there's some basis to their opinions, some basis to their argument with respect to dietary supplements and food that are consumer-ready. I disagree with them strongly on many levels.
I don't think they have a basis to be seizing isolate. It makes absolutely no sense to me when it's packaged, for example, in a five kilo container and it's been [inaudible 00:08:16] for the processing. It's not consumer-ready. It could be used for many applications. And if you look at the definition of industrial hemp under the 2018 Farm Bill, it includes any cannabinoid.
Matt Baum: Right?
Frank Robison: CBD cannabinoid, cannabinoid is not a scheduled substance. Epidiolex is scheduled. Epidiolex as a drug is scheduled, but it has a specific manufacturing process. It has a specific dose. It's encapsulated. Is a specific product that is intended to treat a specific medical condition. It is extremely, from my perspective, distinct from a sack of isolet and it's just not even close to anything like a food product or a supplement product that contains a broad spectrum of cannabinoids back from the-
Matt Baum: Right. We'll talk about the difference between-
Frank Robison: ... from the whole planet [inaudible]
Matt Baum: ... a drug...
For those of you who don't know what we're talking about, the DEA schedules drugs, all drugs, not just illegal drugs, but all of them into five different categories. Number one being the most illegal and abusive and addictive. And that's where hemp and marijuana lived for a long time, right alongside heroin and cocaine. The further away you get from one, Schedule V, for example, where you'll find Pepto-Bismol and Acetaminophen and analgesics, stuff like that, that people aren't going to abuse. That's probably where Epidiolex is going to live. But don't quote me on this, I'm not certain.
So where these seizures, the seizures you're talking about, are these international seizures or are these national or is it both?
Frank Robison: So the seizures that with respect to CBD are always international. So it's either outbound out of going out of the United States or something coming into the United States. Generally, though I am aware of one a seizure that was at a checkpoint, and I can't remember if it was New Mexico or Southern California when we had a CBD company, a CBD 'company' just driving near the southern border. CBP had a checkpoint for immigrants-
Matt Baum: CBP is the Customs and Border Patrol.
Frank Robison: ... that was focused on immigrants. The truck, pickup truck was full of hemp-based products and that truck was, the merchandise in that truck was seized and that was not intended to be exported from the United States. So I am aware of situation.
Matt Baum: But it's still drugs as far as they're concerned. They're Like, oh-
Frank Robison: What's that?
Matt Baum: ... it's obviously drugs. They're drug dealers. Stop them.
Frank Robison: Yeah. And it's really unfortunate when something like that happens because then all of a sudden, certain data gets put into a database.
Matt Baum: Right.
Frank Robison: That tag follows people involved in that transaction for a long time and that's just not-
Matt Baum: It's not fair.
Frank Robison: ... it's fundamentally unfair.
Matt Baum: It's just not fair. Right.
Frank Robison: Yeah. It's a depravation of your constitutional rights particularly, your right to due process among others. And so you know you have a right to, fundamental constitutional right of noticing the opportunity to be heard and to be seizing a product inside the United States and not providing someone with that right is just from a lawyer's perspective, it goes back to just the travesty of justice. Why we become lawyers, [inaudible] we want people to have their property, their life or their liberty taken without an opportunity to be heard.
Matt Baum: So let me ask you, is a major impediment here, is the major problem the way that the FDA is defining this or is it more of the way that say local law, law enforcement is carrying out what they feel is their job? Or is it a mixture of both?
Frank Robison: Well, with respect to the interstate transport of hemp and hemp products, it's local law enforcement and the fact that the federal government from, in my view, has only issued limited guidance and we're in a period where the federal government hasn't promulgated rules, hasn't conducted work. Although they have conducted some, they haven't conducted readily accessible and easily understandable workshops with respect to the 2018 Farm Bill. And I think they're hesitant to do so because regulations haven't been promulgated. That said regulations are, pursuant to my understanding, imminent. And when I say imminent, I'm talking this fall or early winter of 2019.
Matt Baum: Oh, that's fantastic.
Frank Robison: Yeah, it is been moved up from its original, it's going to take about a year to do to again, to like again, I think the last I heard was something in September or October should be provided, should be so some sort of emergency rule making should be enacted by up by then.
Matt Baum: And at that point there'll be an education that is basically handed down to law enforcement. So when you do pull someone over with flat like hemp flower or hemp stalks, they can say, here's our process, here's what we do, here's the way we should test it. I mean, is that all in there?
Frank Robison: Hopefully. That's to be seen. And so what we could see and again, at the local level, what we could see so distinguishing it from the conversation, the parallel conversation we're having about the international seizures and the international issues that we're seeing with the import and export of of hemp, which is an agricultural commodity. In any event we'll set that aside, but that's actually applicable to the local issues.
Matt Baum: Absolutely.
Frank Robison: Like you should hopefully in the regulatory process you'll see something about testing standardization in field-testing, but you might not. We may not see that and that might come down through informal policy statements, that might come down through educational workshops. That might not come down at all because states have a right to regulate hemp more stringently than they do, than the federal government. And the 2018 Farm Bill that says they do not have the right to impede the interstate transport of hemp.
And so you might see some confusion because there's two provisions within the 2018 Farm Bill that should be easy to understand but may not be easy to understand for people that want to consider hemp marijuana, which is not. Hemp is hemp and marijuana is marijuana, but it should be easy to understand that states may have legal frameworks that are more strict than the 2018 Farm Bill, but they are not under any circumstance allowed to restrict the interstate transport of hemp.
And so how that unfolds is to be seen as you mentioned, as you questioned, hopefully that is clarified through rulemaking. I fear that it will not be, and it will be clarified through court cases-
Matt Baum: Of course.
Frank Robison: ... legal actions.
Matt Baum: ... Of course, because there's going to be holed out. There's going to be people that say, I don't care. You're not bringing marijuana through my state and-
Frank Robison: Judicial precedent. Exactly, correct.
Matt Baum: And you can say as many times as you want, it's not marijuana but until they can sit down and listen.
Frank Robison: And hopefully they listen to the industry and industry stakeholders about testing procedures, uniform testing procedures in the field, if any. And when I say if any, I think that it's appropriate that so long as the state of origin that has a agricultural pilot program as they're called today, under the 2014 Farm Bill or a agricultural plan under 2018 Farm Bill. So long as they have appropriate documentation from the state that complies with the states, state law and regulations indicating that the hemp trust shipment is compliant with that program or plan respectively then local law enforcement shouldn't be allowed to test it in the field because there is so much variance between the tests. I mean it could go, it can even vary from the same piece of machinery to the same piece of machinery, the same testing technologies to the same testing technology because the way that machine is calibrated or because of the understanding of the user of the machine is lacking.
They might not understand how to use such a sophisticated piece of machinery. That said, there are people developing field tests that are supposedly quite accurate, but again, these are things that in my view, we're putting a risk between point A and point B. Point A being the country where they hemp is grown, point B where the hemp is lawful to possess, manufacturer, process. Let's just use an example from Kentucky to Colorado.
Matt Baum: Sure.
Frank Robison: We were putting in the hands of local law enforcement and particularly all those states, between Kentucky and Colorado, the potential to misapply what from my perspective should be clear federal law. Compliant hemp, hemp grown compliantly, products derived from hemp grown compliantly shouldn't be stopped, shouldn't give rise to legal jeopardy for anybody much less for a guy that's getting paid 5,000 bucks to truck it from point A to point B. It's absolutely unconscionable that an individual like that would spend time in jail.
Matt Baum: Now, let me ask you, which do you think is more difficult right now, importing hemp from out of the country and bringing it in or just moving hemp within the US?
Frank Robison: It depends on the form. And ironically when we're talking about flower, I think the import and export of flower is relatively straightforward.
Matt Baum: Really?
Frank Robison: Yeah. The interstate transport of flower is relatively complex because it looks like, it smells like it's cousin or we'll just call it a distant cousin just to make sure [inaudible]
Matt Baum: Yeah, distant cousin.
Frank Robison: Hemp is not marijuana, hemp is not marijuana, but in any event to local law enforcement, it looks the same. I think most CBP, people that work with CBP at this point understand that hemp is not marijuana and there are ways to demonstrate and document that it is not so. And that said, getting back to the, switching gears, I know we're bouncing back and forth between the interstate issues and the international issues. International issues really come into play with again, with as we were talking about earlier, with consumer-ready products. Products that are packaged with, by, for consumers that have CBD listed as an ingredient. And whether or not it's a subset of the ingredient... within the ingredient list. When I say subset it's going to say something like whole hemp extract and then it says something like parenthetical, you know CBD, CBN, or terpenes, or it just says CBD, products of that nature are quite regularly being seized.
Matt Baum: Let me ask you a question-
Frank Robison: And again... Yeah, go ahead.
Matt Baum: If you go to amazon.com right now and you search CBD, there are thousands of hits that you will get.
Frank Robison: It's amazing.
Matt Baum: And I mean most of it is garbage. A lot of it even says it's made with stems and whatnot, which isn't even how you do it. How is Amazon selling all these products? And a lot of them look like from Chinese sellers. They have to be importing that stuff, right?
Frank Robison: So people are selling bill of sale to Amazon and Amazon's buying it. I am very well aware of many, many entities that are selling that it's derived from stalk and cells, because I look at these products on a regular basis-
Matt Baum: And it's garbage.
Frank Robison: ... because I'm also a bit aware of any one, yeah, they're... I'm sorry?
Matt Baum: It's pure garbage. I mean it's just fake.
Frank Robison: Yeah. Well it's either, if it is made from stalk and sterile seeds, it's of very low quality as you say, garbage product, or they're just plain and simply misrepresenting and that it's made from flower and they're getting it on Amazon and that's their marketing shtick. And doing that would run a foul with Amazon's policies. Amazon's policies do state, seller's policies do state that you cannot sell product from cannabis flower on I don't remember the exact verbiage, it's been a minute or more since I read the policy, but it's something along the lines of you can't sell flower. You are able to sell products derive from stalk and sterile seed. So people read the policy and then they market their product product according to their policy in order to get it approved on Amazon.
Matt Baum: So let me ask you, does that mean Amazon is, in your opinion, I'm not saying let's damn them to hell, but does that mean Amazon is actively promoting the sale of a product that is completely bunk basically?
Frank Robison: I don't think so. I think the better way to say that would be that the sellers that are on Amazon, that understand Amazon's policy and they're using it to their advantage to make sales.
Matt Baum: So it's a bad policy and the sellers are using it basically?
Frank Robison: Yes. I don't know if I want to call it a bad policy. I think it's a... I don't think it's a surprising policy given the FDA's rhetoric on CBD products, which I think is really, I think as one of the more unfortunate things that's going on in the background of this wonderful moment of the 2018 Farm Bill where hemp is descheduled as it should have been 45, 50 years ago or more. It never should have been, well, let's just say ever because it never should have been scheduled. But in any event it has been, it's been long overdue the descheduling of hemp and Amazon has a policy that predates the 2018 Farm Bill that focuses in on the stalk and sterile seed component of the definition of marijuana that under The Controlled Substances Act, and people understand the policy and they navigate accordingly. Is that Amazons..., Is Amazon the customer, its seller police? I don't think that's their responsibility.
Matt Baum: No, no. And they're playing it safe obviously. They can look and they don't want this stuff seized, they want to make money on it and if they do it this way, it doesn't get seized. The person that gets it is happy, you, they're happy even though it might not be the best product.
Frank Robison: I think they need to believe they're their sellers too. I mean, I don't think they're in a position where they can 'police' what their sellers are selling. I mean they need to rely upon the representations that their sellers are making. If someone makes a misrepresentation, I don't think that it would be fair to put the burden on Amazon to go check the traceability, the lot traceability of those stalks and seeds for [inaudible 00:23:17]. I mean that would be an undue burden on a company like Amazon. That said, if it did, pursuant to their policy that products would probably be removed. But again, I think the policy is unfortunate. I think that we should embrace products that are made from cannabis, excuse me, hemp flowers.
Matt Baum: Right. It's a bad policy. I mean, that's what it comes down to.
Frank Robison: I think it's a bad policy, but it nevertheless, it's their policy.
Matt Baum: Right. And they're doing-
Frank Robison: They have the right to make a policy.
Matt Baum: ... Jeff Bezos has to cover his butt. I get it.
Frank Robison: I don't know if it's covering their butt, but I mean maybe it's a matter of not having updated the policy since the 2018 Farm Bill or maybe it's a matter of not wanting to update the policy until the FDA clarifies the waters that it's muddy.
Matt Baum: Exactly. Okay. Let me ask you one more question on this. What is the one thing that could change tomorrow that makes your job easier as an importer, exporter, moving stuff wearing around and interstate commerce? What's the one thing that you would like to see change?
Frank Robison: Can I get one on both sides of the fence, Matt?
Matt Baum: Absolutely, absolutely. Please, please.
Frank Robison: So, the one thing on the international import and export of goods that I would like to see changed is that the FDA would acknowledge that CBD that is found in a whole hemp extract is a distinct compound, is distinct, excuse me, from CBD in the form of Epidiolex. It is just quite simply not the drug Epidiolex and that to me is a just bluntly a no-brainer. If you look at the World Health Organization, still the World Anti-Doping Association almost two years ago deemed CBD not to be a regulated substance. The World Health Organization has deemed a whole hemp extracts in CBD in particular not to pose a public health issue.
And so collectively you take those, you take issues like various established, credible international bodies and you also look at the difference between Epidiolex and what people are putting into food or supplement like products, I mean it's just night, it's just as you said generally, it's night and day. It's apples and oranges. So on one hand you have a benign substance. Many entities aren't putting that CBD isolate. Even if we did agree with the fact that CBD isolate in itself was the same thing, assuming for the sake of argument that CBD isolate is substantially equivalent to the drug Epidiolex. I mean that's not what people are putting into-
Matt Baum: Exactly.
Frank Robison: ... that's not what many stake holders are putting into their products. They're putting in whole hemp extract, full-spectrum type of oils. And so I would like to see some sort of FDA rhetoric on that so that customs and the FDA officials that work with customs on a regular basis don't seize products that are packaged for retail human consumption. It just doesn't, from my perspective, make sense so long as that product is compliant with the laws of country of importation. And so you have products being seized that are being exported from the United States that are perfectly compliant with the country of importation's laws. And that's just creating.... It's causing people to endure costs to clarify those situations with customs.
And so some, again, so to get back to your question, some sort of simple clarification with respect to products that are containing whole hemp full-spectrum extracts. That said, I don't think, and from a practical perspective, the FDA is willing to go all the way to isolates, but I would like to see that as well. I think it's in the range of things that they should feel comfortable doing clarifying their view on whole hemp extracts.
Matt Baum: Right. So what about here at home?
Frank Robison: Interstate... I'm sorry, go.
Matt Baum: I said what about here at home? Interstate?
Frank Robison: So interstate here at home, clear guidance. That's said, we saw fairly clear guidance statement from the General Council of the United States Department of Agriculture, which was very welcome approximately I would think at this two months ago. I don't know the date off the top of my head. That letter, that opinion from the General Council of the United States Department of Agriculture was about five months overdue, but to its credit it came, so he clarified certain issues. I would like to see additional clarification with respect to the interstate transport of hemp and hemp-based products come out of the United States Department of Agriculture to ensure that nobody's ever sees another day in jail because of a misunderstanding at the local law enforcement level.
Matt Baum: Because of a completely legal substance. That's like arresting someone for moving corn.
Frank Robison: It's like arresting someone for moving soybeans or corn.
Matt Baum: Exactly.
Frank Robison: That's correct. Or even let's go to a product that has a high concentration of terpenes. Let's go to perhaps akinesia, St John's-wort, [inaudible 00:28:31], products like this. So just very frustratingly at the local level, a field test is a litmus test. It's very much akin to a pregnancy test.
It's either you're pregnant or you're not. And what triggers a field test is not only, the [inaudible] presence of THC, though that does trigger a field test, but it also can be the presence of other cannabinoids and the presence of terpenes that are commonly found in cannabis. And so all of a sudden you're using a field test that is inherently unreliable to field-test products, hemp and other hemp products in the field. And local law enforcement is using that positive litmus pregnancy test to establish probable cause and probable cause should not be established to search and seize anyone's merchandise for an inherently unreliable field test for an agricultural commodity-
Matt Baum: Not to mention-
Frank Robison: ... although agricultural commodities could also trigger it.
Matt Baum: ... And not to mention the fact that we're asking the highway to patrol to be chemists at the same time. Like this is not their job. This is not what they do.
Frank Robison: We're not. And we want them... And that gets back to a point we were talking about earlier, which I think is the way to address this issue is to rely upon state of where...
Matt Baum: Frank and I wandered off on a few tangents after this, but it was wonderful to talk to him. And it's one of those things you don't think about. There was a recent case in Oklahoma with a trucker that was pulled over and arrested for hauling hemp and spent four weeks in jail. And the good news is Frank has some good news about that. I can't talk about it yet because there's something that's going to happen next week, but we'll revisit that on the show. I want to thank him so much for coming on here and thank you to everybody that's been listening to the show and calling us with your questions. You can always call us and leave us a message at (402) 819-6417 and leave us your hemp related question. We answered them right here on the show. My buddy Kit and I just did it last week and we're going to do it again soon.
If you dig what you've heard here, please leave us a rating or write as a review even. It really helps to make the show more discoverable for people that are looking for this information and it also makes me feel pretty good because I produced this whole thing. You can find us on Twitter, @MinistryofHemp, on Facebook, \ministryofhemp, and you can always email me, [email protected] with any of your questions or anything you'd like to hear or even some creative criticism. I'd just like to hear from you, the listeners. For now, this is Matt Baum with the Ministry of Hemp saying, take care of yourself, take care of others, and make good decisions, will you? This is the Ministry of Hemp Podcast signing off.
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