Yesterday, the Missouri Department of Health and Senior Services ("DHSS") published a letter clarifying its enforcement policy concerning certain psychoactive hemp products that were the target of recent executive action. As we highlighted in the state round-up segment of our webinar, "Recent Updates and Best Practices Regarding Hemp Cannabinoid Compliance," a recent Executive Order restricting psychoactive hemp products in Missouri has ruffled some feathers and spurred litigation. On August 1, Governor Mike Parson signed Executive Order 24-10, which ordered, among other actions:
- The DHHS to: "beginning on September 1, 2024, designate foods containing unregulated psychoactive cannabis products as foods that come from an unapproved food source or as foods that contain an unapproved food additive that comes from an unapproved food source as outlined in the 2022 FDA Food Code and the 2013 Missouri Food Code, or revisions of said codes... and to take the necessary steps in accordance with statute and regulation to embargo and condemn any food containing unregulated psychoactive cannabis products."
- The Missouri Division of Alcohol and Tobacco Control ("DATC") to: "amend its regulations such that unregulated psychoactive cannabis products are prohibited from being sold on the premises of a liquor-licensed facility."
Executive Order 24-10 defined "unregulated psychoactive cannabis products" as Delta-8 THC, Delta-10 THC and other similar compounds. The Executive Order and the subsequent emergency rulemaking proposed by the DATC were not immediately embraced by the MO Secretary of State, who denied the emergency rulemaking without any substantive explanation. In turn, the Executive Order sparked a private lawsuit by hemp advocates. On August 30, 2024, the Missouri Hemp Trade Association sued in state court seeking injunctive relief to prevent DHSS from embargoing foods containing hemp products, arguing that the Executive Order's instruction to the DHSS is facially inconsistent with state law. The Missouri Hemp Trade Association argued, in part, that the Order conflicts with existing state law, in particular, § 196.070.2, RSMo., which expressly states that "[a] food shall not be considered adulterated solely for containing industrial hemp, or an industrial hemp commodity or product."
The pending lawsuit prompted DHHS to issue a clarification letter authored by Richard Moore, Deputy Director and General Counsel, which at least tacitly acknowledges the legitimacy of the Missouri Hemp Trade Association's legal challenge by stating the Department's "agreement" that § 196.070.2, RSMo. says what it says. The letter then clarifies that the DHSS "will focus its efforts on the identification of "misbranded" products as that term is defined in Section 196.075, RSMo." It further confirms that if DHSS identifies any such misbranded products, it will refer those products to the Missouri Attorney General's Office for potential enforcement under the State's Merchandising Practices Act, which, among other things, prohibits "[t]he act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce[.]"
In other words, the letter indicates that the DHSS will take a more circumscribed approach to embargoing products focused on misbranding issues that raise consumer protection concerns. Likewise, the letter confirms that the DHSS has no intention at this time to embargo additional psychoactive cannabis products as "adulterated." Finally, the letter confirms that "within 30 days after referral to the Attorney General's Office, the Department will release all currently embargoed products and remove all embargo tags." Once such tags are removed, such products will not be subject to an embargo, provided there is no court order to the contrary.
At bottom, this letter and the concessions therein are a win for hemp industry advocates, who believed the Governor's Executive Order to be far broader in scope than was necessary to protect children from harmful products, which was the animating purpose of the Order. An enforcement focus on misbranding is certainly a more tailored remedy that is less objectionable to hemp operators.
Originally published 18 September 2024
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