We have a customer who is selling products through the internet claiming to be derived from hemp. His website states that they utilize a technique that removes naturally occurring trace amounts of THC from their products, while preserving certain compounds such as “cannabigerol (CBG), cannabinol (CBN), cannabichromene (CBC), and over 40 naturally preserved terpenes.” Is it legal in Illinois to sell and distribute such products?

No, we believe that the sale of these products currently is illegal under both federal and Illinois law. The federal Drug Enforcement Agency views products containing hemp and other cannabis derivatives as being included in the prohibition against the production, sale, or possession of cannabis (“marihuana”) in Schedule I of the federal Controlled Substances Act.

The commercial sale and distribution of hemp and other cannabis derivatives likewise is not legal in Illinois. The Illinois Cannabis Control Act in its current form prohibits the manufacture and delivery of cannabis and all other cannabinol derivatives. However, Illinois Senate Bill 2298, known as the “Industrial Hemp Act,” would amend the Cannabis Control Act to provide that “cannabis” does not include industrial hemp. Senate Bill 2298 was passed by both houses in the 2018 spring legislative session and was sent to the Governor on June 28, 2018. But no action has been taken by the Governor on SB 2298 as of the date of this writing.

Even if the Industrial Hemp Act were to be enacted in Illinois, the federal law continues to prohibit the dispensing and distribution of controlled substances, including “marihuana” and “marihuana extract,” each of which are classified as Schedule I substances. This prohibition includes hemp, as evidenced by the fact that both Illinois and federal law provide for the implementation of Industrial Hemp Pilot Programs that allow institutions of higher education and state departments of agriculture to grow industrial hemp for the purposes of studying the growth, cultivation or marketing of industrial hemp.

For resources related to our guidance, please see:

Department of Agriculture, Office of the Secretary; Department of Justice, Drug Enforcement Administration; Department of Health and Human Services, Food and Drug Administration, Statement on Principles of Industrial Hemp, 81 Fed. Reg. 53395 (August 12, 2016) (“The term ‘industrial hemp’ includes the plant Cannabis sativa L. and any part or derivative of such plant. . . .”)

Controlled Substances Act, 21 USC 802(6) (A controlled substance is “a drug or other substance, or immediate precursor, included in schedule I, II, . . .”); Controlled Substances Act, 21 USC 812(c)(c)(10) (Schedule I drugs include marihuana.); Controlled Substances Act, 21 USC 802(16) (“The term ‘marihuana’ means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin . . . .”).

Cannabis Control Act, 720 ILCS 550/3 (“‘Cannabis’ includes marihuana, hashish and other substances which are identified as including any parts of the plant Cannabis Sativa, whether growing or not; the seeds thereof, the resin extracted from any part of such plant; and any compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin, including tetrahydrocannabinol (THC) and all other cannabinol derivatives…”)

Cannabis Control Act, 720 ILCS 550/5 (“It is unlawful for any person knowingly to manufacture, deliver, or possess with intent to deliver, or manufacture, cannabis . . . .”)

SB 2298 (100th General Assembly) INDUSTRIAL HEMP ACT (If enacted, this law would provide that a person desiring to grow, cultivate, or process industrial hemp or industrial hemp products must be licensed by the Department of Agriculture. It also would amend the Cannabis Control Act to provide that “cannabis” does not include industrial hemp.)

Industrial Hemp Pilot Program, 720 ILCS 550/15.2(a)(1) (“Pursuant to Section 7606 of the federal Agricultural Act of 2014, an institution of higher education or the Department of Agriculture may grow or cultivate industrial hemp if… the industrial hemp is grown or cultivated for purposes of research conducted under an agricultural pilot program or other agricultural or academic research.”);

Industrial Hemp Pilot Program, 720 ILCS 550/15.2(e) (“‘Industrial hemp’ means cannabis sativa L. having no more than 0.3% total THC available, upon heating, or maximum delta-9 tetrahydrocannabinol content possible. ‘Institution of higher education’ means a State institution of higher education that offers a 4-year degree in agricultural science.”)