UPDATE: Racine County DA clarifies position on CBD oil sales

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Industrial hemp is the source of legal CBD.

UPDATE 3:30 p.m.: In a reversal of sorts from her original position, Racine County District Attorney Tricia Hanson said she will “cautiously follow” Attorney General Brad Schimel’s lead on prosecuting retailers who sell CBD oil derived from industrial hemp.

Schimel issued a clarification of his earlier position in May. Hanson newest press release from Friday afternoon mirrored Schimel’s position.

The main concern is that some products may contain THC, the psychoactive component that produces a high. But state law hasn’t quite caught up with federal laws around CBD oil. Because of that, Schimel and Hansen want to wait to “prosecute these cases until the law in this area is more settled.”

“For retailers that sell products from hemp, including CBD, — as long as the hemp product was produced under a state pilot program, including an out of state program, a retailer may import it and sell it,” the press release reads.

Hanson warned, however, that product that exceeded the state’s THC levels would not be allowed.

“At this point, we will change our focus regarding enforcement on the content of the item sold,” Hanson said. “If law enforcement has a reasonable suspicion that a particular product may contain THC, we will purchase the product and test for THC levels. If it tests for a prohibited amount of THC, a prosecution may be warranted.”

Read Hanson’s full press release.

ORIGINAL STORY: A press release from Racine County District Attorney Patricia Hanson this week regarding the sale of products containing cannabidiol, or CBD, seems to contradict guidance from Wisconsin Attorney General Brad D. Schimel from six weeks ago. CBD is a substance found in marijuana and industrial hemp.

Hanson’s press release stated that “Retailers at liquor stores and convenience stores across Racine County have begun to sell CBD Gummie Bears and CBD oil.”

A May 10 release from the Wisconsin AG, however, advised against taking any action toward makers and sellers of CBD products.

It also reiterated rules set out by the state’s Department of Agriculture, Trade and Consumer Protection. The Federal Food and Drug Administration has issued several warning letters to businesses that market CBD. The FDA has learned that some materials labeled as CBD do not contain levels of CBD that they claim.

CBD is extracted from the male hemp plant, which has been grown for industrial uses for decades. CBD can also be extracted from the female marijuana plant, but only legally processed in a handful of states; Wisconsin is not one of them. CBD is described as a non-psychoactive substance, as opposed to the highly psychoactive relative. THC.

Hanson stated that local retailers selling CBD products had been advised by their distributors that the products are legal to sell and possess in this state. “This is not true,” Hanson wrote. “CBD products can only be sold under VERY limited circumstances and under the supervision of a physician.”

‘Law enforcement will remove product’

“I have advised law enforcement across the county that when they see these products in stores, they are to make contact with the store owner/management and determine if the product is being sold lawfully,” she continued. “If it is not, law enforcement will remove the product … and ask for consent to search the store for other unlawful CBD products.”

CBD is also derived from industrial hemp, which many farmers would like to add to their fields.

The Wisconsin Department of Agriculture, Trade and Consumer Protection earlier this year created an industrial hemp research pilot program. It requires growers and processors to obtain one-time licenses, then registers each year that they intend to plant or process industrial hemp.

Farm Bill may address CBD issue

A patchwork of federal and state laws contradict what is allowed under current statutes and regulations. Schimel’s May 10 directive tried to bring clarity to the discussion: The “DOJ remains committed to ensuring that CBD oil for sale at retail outlets is safe for consumers. With the 2018 Farm Bill now working its way through Congress, it is likely that our current laws will be changed even further to make industrial hemp’s legality clear.

“Therefore, I am advising law enforcement not to take enforcement action against products made from industrial hemp that is grown under a lawful hemp research pilot program, including CBD, until Congress considers changes to the law, enabling the Wisconsin State Legislature to further clarify the status of these products.”

Missed the memo?

At least one CBD product manufacturer believes the Racine County DA may have missed the Schimel May 10 statement. Schimel’s statement was, in effect, a retreat of sorts of an earlier state enforcement directive.

“We believe this issue is a result of a well-meaning authority that is not fully aware of the recent developments,” said Steven Thompson, founder, and CEO of Zilis, which manufactures CBD products.

“Last month, our legal team worked directly with the attorney general on why (our) products … are perfectly legal in Wisconsin as long as they are grown under farm bill pilot programs,” Thompson added. His company’s products come from hemp grown under a certified pilot program, he said.

It appears that the concern of the Racine County DA is the veracity of some of the products found on sale recently. “Other counties that have already seen this problem have determined that the majority of the products they have received from cooperative merchants, does, in fact, contain tetrahydrocannabinol (THC), the illegal ingredient in marijuana, despite labeling to the contrary,” Hanson wrote in her Tuesday statement.

“The Racine DA explained to our Wisconsin contacts that she was referencing products (the gummies) that she believes are not below 0.3% THC,” Thompson told Racine County Eye. “She is going to provide us with a written statement that she was not referencing legit farm bill compliant CBD products such as (we sell).”

DA Hanson did not respond to a reporter’s request for comments.