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The Emergence of USDA Certified Organic CBD Products

Avid organic consumers can now buy USDA Certified Organic CBD products. Until a few months ago, domestically produced USDA Certified Organic hemp was not widely available. In anticipation of the Farm Bill being signed into law, a few industrial hemp farms, hemp processors, and CBD manufacturers began the process of applying for USDA organic certification in the second half of 2018. Obtaining USDA Organic certification provides hemp farms and processors and CBD companies a way to stand out from the competition as well as offering assurance of safety and high quality to consumers and retailers.

CBD & USDA

CBDRx had been one of the first hemp farms to receive USDA Organic Certification when it received the certification for its hemp crop in January 2016. Following the passage of the 2014 Farm Bill, the USDA had authorized organic certification for hemp cultivation in the US. However, interest in obtaining USDA Organic certification for industrial hemp was limited due to restrictive USDA policies. In February 2016, the USDA stated that third-party auditors could no longer certify hemp operations. Seven hemp farms had received organic certification prior to the new guidelines. In August 2016, the USDA reversed course and issued a statement of principles allowing the certification of industrial hemp crops grown through state pilot programs in accordance with Section 7606 of the Farm Bill. Based on this clarification, the USDA required certifiers to confirm that a state has an industrial hemp agricultural pilot research program before certifying hemp in that state. Additionally, the statement of principles did not expressly include the flower (which has the highest concentration of CBD within the plant) of the hemp plant in the definition of industrial hemp. Instead, the statement stated that “The term ‘industrial hemp’ includes the plant Cannabis sativa L. and any part or derivative of such plant, including seeds of such plant, whether growing or not, that is used exclusively for industrial purposes (fiber and seed) with a tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”

The passage of the 2018 Farm Bill in December 2018 that legalized industrial hemp cultivation and declassified hemp as a Schedule I controlled substance encouraged more companies in the industrial hemp and CBD industries to pursue USDA Organic certification. Hemp imported from other countries has always been certified under the USDA Organic regulations. In April 2019, Palmetto Harmony became the first CBD company to have their hemp flower and viable seeds (along with hemp clones and hemp transplants) certified as USDA Organic along with their flower extracted CBD product line.

Which brands have USDA Certified Organic CBD products?

At this point, there are very few CBD companies selling USDA Certified Organic CBD products, with none of them in the top 20 CBD brands ranking. However, their visibility is high compared to the small size of the companies. Three of the four companies that received a score of an “A” in the Center for Food Safety’s inaugural “Hemp CBD Scorecard” offer USDA Certified Organic CBD products – GreenGorilla, Palmetto Harmony and RE Botanicals. Of the 13 CBD brands offered by Anavii Market, a leading online retailer of CBD products, three offer USDA Certified Organic CBD products – Barlean’s, Palmetto Harmony and RE Botanicals.

To obtain USDA Organic certification, CBD companies need to use specific extraction processes and USDA Organic Certified ingredients including for carrier oils, in addition to using hemp that has been USDA Organic Certified. The permitted extraction processes for use in USDA certified organic CBD products are CO2 extraction, an alcohol extraction method using USDA certified-organic cane alcohol, and lipid extraction. CO2 extraction, utilized by Barlean’s, uses carbon dioxide under high pressure and fluctuating temperatures to act as a solvent. RE Botanicals uses an alcohol extraction method using USDA certified-organic cane alcohol instead of ethanol derived from GMO corn. Palmetto Harmony uses lipid extraction (also called lipid infusion) that involves steeping the buds (dried hemp flowers) in organic MCT (coconut) oil before filtration.

Benefits of USDA Organic Certification for CBD

While not right for every brand, there are multiple benefits to obtaining USDA Organic certification for companies who are willing to invest the time, effort, and money required to obtain it. The USDA Organic seal is one of the most recognized certifications among US consumers and provides another level of assurance to shoppers who may be concerned about the safety of CBD products. In addition to assuring that no synthetic fertilizers, pesticides or herbicides have been used in the cultivation of hemp, the USDA organic certification ensures that farmers are using tillage and cultivation practices that maintain or improve the condition of soil and minimize soil erosion through crop rotations, cover crops and the application of plant and animal materials. Obtaining USDA Organic certification can also help CBD brands enter retail channels by offering differentiation and a positive environmental and sustainability story as the number of CBD brands continues to explode.

CBD brands use all kinds of strategies to stand out in the market. The USDA Certified Organic seal is emerging as a viable option for companies willing to make the investment.

Industrial Hemp and USDA Organic Certification

We’ve written previously about the inability of cannabis companies to receive United States Department of Agriculture (USDA) organic certification for their products (although there are alternative state-level and private certifications available to fill this gap), but what some of our clients are unaware of is that the USDA will provide organic certification for qualified industrial hemp producers.

The USDA provided clarifying instructions in its September 2018 Instruction on Organic Certification of Industrial Hemp Production for the UDSA’s policy regarding the organic certification of industrial hemp production by certifying agents accredited by the USDA National Organic Program (NOP). The UDSA first noted that Section 7606 of the Agricultural Act of 2014 (the Farm Bill) authorized institutions of higher education and state departments of agriculture to establish industrial hemp research pilot programs in states where the production of industrial hemp is legal and subject to certain other conditions.

The USDA’s official policy is that “[f]or hemp produced in the United States, only industrial hemp, produced in accordance with the 2014 Farm Bill, as articulated in the Statement of Principles on Industrial Hemp issued on August 12, 2016 by USDA, may be certified as organic, if produced in accordance with the USDA organic regulations.”

For industrial hemp producers operating in accordance with their state’s industrial hemp program, becoming a certified organic operation will be no different than for companies in any other industry. The USDA lays out five basic steps to attaining organic certification:

  1. The farm or business adopts organic practices, selects a USDA-accredited certifying agent, and submits an application and fees to the certifying agent.
  2. The certifying agent reviews the application to verify that practices comply with USDA organic regulations.
  3. An inspector conducts an on-site inspection of the applicant’s operation.
  4. The certifying agent reviews the application and the inspector’s report to determine if the applicant complies with the USDA organic regulations.
  5. The certifying agent issues organic certificate.

All certified organic farms and businesses must also undergo an annual review and inspection process.

It is important to remember that touting your hemp (or cannabis) as certified organic when it is not is illegal under federal law. As mentioned above, for cannabis businesses there are alternative certifications available via some states or via private third-party certification companies.

In California, for example, SB 94 mandated that the California Department of Food and Agriculture (CDFA) create an organic cannabis program by 2021. In 2018, the CDFA formed the “OCal” project, which is a four-person team within CalCannabis dedicated to establishing that organic cannabis program. The program will be similar to the National Organic Program (NOP). OCal is currently in the information-gathering stage and is set to begin soliciting input from stakeholders this month.

In short, it’s clear that both hemp and cannabis companies value organic principles and are seeking certification. The path to such certification is clear for qualifying industrial hemp companies, but for other cannabis companies, the options are much more limited.

Alison Malsbury

Alison primarily focuses on corporate and intellectual property transactions, working primarily with Harris Bricken’s cannabis, tech and entertainment clients. She has assisted clients with contracts, company formation, intellectual property protection, and regulatory compliance, and enjoys working with creative entrepreneurs at all stages of business development. Alison has a strong and…

Industrial Hemp and USDA Organic Certification We’ve written previously about the inability of cannabis companies to receive United States Department of Agriculture (USDA) organic certification