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MADISON - Attorney General Brad Schimel says Wisconsin farmers who grow industrial hemp can produce CBD oil from it.

Schimel's statement on May 10 is a reversal from a Justice Department memo last month that said only doctors and pharmacies can distribute the oil and people can possess it only with a doctor's certification.

Hundreds of farmers have applied for new state licenses that would allow them to grow industrial hemp. Many hope to produce and sell CBD oil, which can be used to treat seizures. The DOJ memo left many of these farmers wondering whether it would be worth their time to start growing hemp.

The new guidance came on the heels of a May 9 meeting with the Wisconsin Department of Justice (DOJ), Schimel and his staff, members of the Wisconsin State Legislature, the Wisconsin Farm Bureau Federation (WFBF), and the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) regarding Wisconsin’s new industrial hemp research pilot program.

Related: Wisconsin sees wave of applications for industrial hemp

Related: DOJ warning on CBD oil is big roadblock for hemp farmers

Related: Schimel issues guidance on CBD oil, industrial hemp production

The meeting focused on the effect of 2017 Wisconsin Act 100 on Wisconsin's existing law concerning CBD and THC. 

“We all have always had full confidence in the successful implementation of the industrial hemp program in Wisconsin,” said Schimel. “Industrial hemp has the promise of being an important part of our critical agricultural economy, and Wisconsin farmers who choose to participate in this pilot program deserve and need legislative and regulatory certainty from all parts of government.”

Industrial hemp has the potential to be a big part of the state's farm economy, according to Schimel, and he will advise police to allow hemp growers to produce CBD oil if the growers obtain a license from state agriculture officials.

Wisconsin’s industrial hemp program, which is administered by DATCP, allows Wisconsin farmers to grow and sell industrial hemp, as long as they obtain a permit and abide by certain DATCP requirements. Farmers who participate in this program and follow the rules are exempt from criminal prosecution, and products made from industrial hemp, including CBD, are lawful.

“I very much appreciate WFBF raising concerns to me about Wisconsin's current laws related to hemp,” said Schimel in a press release. “DOJ remains committed to ensuring that CBD oil for sale at retail outlets is safe for consumers. Senator Testin has been a leader on this issue, and I know he is committed to overcome any challenges that may arise legislatively."

As the 2018 Farm Bill works its way through Congress, Schimel said "it is likely that our current laws will be changed even further to make industrial hemp’s legality clear."

Schimel is advising police "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.”

During the meeting, Schimel, DOJ senior staff, members of the Legislature, WFBF, and DATCP agreed on several points, including the following.

Farmers who follow DATCP's rules and regulations may do the following:

  1. Grow industrial hemp without fear of criminal prosecution;
  2. Sell the entire industrial hemp plant or parts of the plant to anyone;
  3. Process the plant as permitted by DATCP's rules and regulations, which includes producing CBD.

It is important to note that the legal protections under DATCP’s program discussed above apply only to farmers who are working in compliance with DATCP authorization and retailers who are selling CBD certified to be in compliance with the provisions of the Farm Bill. Rogue producers and retailers will still be subject to prosecution.

“Although our legislature has chosen to authorize industrial hemp pilot projects and products made from that hemp, it is still very important to remind Wisconsin consumers that certain products may threaten their health or could be mislabeled,” said Schimel. “Over the past few weeks, I have learned that there is great deal of confusion and uncertainty with products sold in grocery stores and health food stores labeled as ‘CBD.’”

“Law enforcement has encountered products labeled as CBD oil throughout the state and, until the DOJ analytical note, had no guidance on what products are legally and properly manufactured and what products might be harmful to consumers,” said Wausau Chief of Police Ben Bliven. “I appreciate the additional clarity Attorney General Schimel has provided to keep Wisconsinites safe from potentially harmful substances.”

The federal Food and Drug Administration (FDA) has issued several warning letters to businesses that market and sell CBD. During these investigations, the FDA learned that some materials labeled as CBD do not contain the levels of CBD that they claim. DOJ’s Analytical Note explained other health concerns related to mislabeled CBD.

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“CBD is helpful for certain Wisconsinites, and the legislature has made a policy decision to allow those individuals to have access to CBD,” said Schimel. “But we should make sure that our consumers are getting what they expect.”

WFBF President Jim Holte said the Farm Bureau is pleased the DOJ will uphold the 2014 Farm Bill provision that allows states to create an industrial hemp pilot program which involves farmers growing hemp to research growing, processing and marketing of hemp. 

With the signing of Act 100, the language in the act mirrors that of the 2014 Farm Bill to allow the use of any part of the hemp plant for research purposes in the pilot program, according to Holte.

"CBD oil extracted from hemp under provisions of the 2014 Farm Bill and Wisconsin Act 100 must have less than 0.3 percent THC. Wisconsin retailers who sell CBD oil are required to keep documentation that will aid DATCP in researching the CBD oil market," Holte said. "In a time of low commodity prices, this new market is an opportunity for farmers to explore new opportunities. ... Wisconsin farmers look forward to pursuing these market opportunities.”

The Associated Press contributed to this story.

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