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Notwithstanding the legality of these products, there continue to be reports of seizures of legal CBD products imported into the United States. This may be due to the difficulty of distinguishing legal (i.e., hemp-derived) CBD from illegal (i.e., marijuana-derived) CBD without extensive laboratory analysis, and/or it could be due to confusion on the part of CBP officials about what is permitted. For example, in a lawsuit filed in US District Court for the Central District of California, a US-based CBD company alleged that CBP had illegally seized four shipments of Spanish-origin hemp between 2015 and 2018. Three of the shipments are alleged to have been destroyed in part because CBP improperly determined the imports contained controlled substances, notwithstanding documentation from the Spanish growers that the hemp had less than 0.3% THC, making it legal under federal law. The lawsuit has since been settled.

US trade laws are subject to robust enforcement, frequently resulting in significant fines, reputational damage, and settlement agreements that impose compliance program obligations on companies. It is safe to assume that imports and exports of these products could receive greater scrutiny by the US regulators, at least for the time being while the industry matures. In order to mitigate the risk of violations, companies interested in importing or exporting legal hemp and CBD products should develop and maintain compliance programs designed to ensure compliance with US export controls, sanctions, and customs laws and regulations. This includes procedures for product classification, licensing determinations, and restricted party screening processes.

If the products otherwise comply with US law, there is nothing under US customs laws that would prohibit importing them into the United States. In particular, CBP has confirmed publicly that hemp seeds can be imported into the United States. As with any other types of products, anything imported into the United States must be “classified” in the Harmonized Tariff Schedule of the United States (“HTSUS”). Based on the HTSUS code, and the customs value and the country of origin of the good, the appropriate duties, if any, need to be paid. Importers can self-classify the products or submit an administrative ruling request to CBP prior to importation.

As in the export context, all parties to an import transaction should be screened against the US restricted parties lists.

For similar reasons, state and local law enforcement have also stopped hemp crossing state lines, as illustrated by the Big Sky Scientific case in which Idaho troopers seized hemp on its way from Oregon to Colorado. In that case, the hemp was determined to have a THC content at or below .3%, which is legal under federal law, but illegal under Idaho state law. In short, it is clear that imports of CBD products have a greater chance of being stopped by CBP than other products. To avoid unnecessary delays or compliance issues, importers should ensure that CBD imports are accompanied by all required documentation, including phytosanitary certificates, and satisfy all other applicable CBP import documentation requirements, such as the entry summary or entry manifest (as applicable), commercial invoice clearly showing data elements required for customs clearance purposes, and packing list (if applicable).

Below we summarize some of the key US trade compliance considerations for companies seeking to import or export these products. Because every export from the United States by definition involves an import into another country, there will always be at least one other jurisdiction’s import laws to consider.[1]

Exports from the United States to embargoed territories (Crimea, Cuba, Iran, North Korea, Syria) are prohibited without licenses from BIS and/or the Office of Foreign Assets Control (“OFAC”) in the US Treasury Department. (While OFAC is the primary sanctions enforcement agency, BIS and OFAC have overlapping jurisdiction in some cases, so it is always important to consider both agencies’ licensing requirements.) There are narrow licensing programs for products that qualify as agricultural commodities, medicines, and medical devices, with eligibility requirements and licensing policies that vary depending on the sanctions program. We recommend working with knowledgeable trade compliance counsel to determine whether the products might be eligible for these licenses. If so, companies should develop procedures to ensure compliance with the terms and conditions of the relevant licenses. Companies should always watch out for red flags that a customer might divert products to a sanctioned territory without the required licenses.

UPS will not accept Shipments containing Hemp products from any location that sells Marijuana or Marijuana products.

UPS reserves the right to dispose of any shipment containing Marijuana, Hemp or Hemp products tendered for shipment which Shippers are prohibited from shipping, which UPS is not authorized to accept, which UPS states that it will not accept, or which UPS has a right to refuse.

UPS accepts products made from Hemp (including Cannabidiol – CBD) for shipment only as permitted by all applicable state and federal laws. It is the responsibility of the Shipper to ensure compliance with all such laws, including the Food, Drug & Cosmetic Act, 21 U.S.C. §321, et seq.

CBD/Hemp liquid products intended for vaporization are prohibited in the U.S. network (including import and export). Please refer to the Tobacco Vape Policy for more information.

Hemp, as defined in 7 U.S.C. § 1639o, is also prohibited from shipment when in plant form.

The shipment of Marijuana, as defined in 21 U.S.C. §802(16), is prohibited under any circumstances, even when Marijuana is for medicinal purposes or is otherwise legal under a state’s law.

UPS reserves the right to discontinue service to any Shipper for, among other reasons, tendering a Package containing Marijuana, Hemp or Hemp products that does not comply with all applicable laws or the UPS Tariff/Terms and Conditions of Service.

Sheryl C. Cates, BA, a senior research policy analyst in RTI’s Food, Nutrition, and Obesity Policy Research Program, has more than 25 years of experience conducting consumer behavior research related to nutrition and food safety. She conducts studies to assess consumer use and understanding of labeling features and response to alternative label formats. Her research also assesses the impact of educational interventions on outcomes related to healthy eating and foodborne illness prevention.

For consumers, and especially medicinal cannabis users, knowing the precise amounts and relative concentrations of Δ 9 -THC and CBD in edibles is vital, as this information largely determines the drug effects that users will experience. Yet, despite evidence of the value of including CBD in edibles, especially those intended for medicinal use, few edible manufacturers report the CBD content of their products. Further, even among products reported to contain CBD, many contain only trace amounts or none at all (Vandrey et al., 2015). In fact, although the FDA has yet to acknowledge the therapeutic applications of the cannabis plant, it has issued warning letters to several manufacturers of products purported to contain CBD. These actions by the FDA highlight the lack of consistency in formulation and labeling of cannabis products.

Packaging and labeling, Alaska Admin. Code tit. 3, § 306.345 (2016)

California

Factors directly related to the oral route of administration of edibles may contribute to this finding of a strong association between edible use and overconsumption. Route of administration is a fundamental variable in determining a drug’s pharmacokinetics, which is defined as the time course and process through which a chemical (such as Δ 9 -THC) enters the body, travels to various tissues and organs, and is metabolized before elimination. Edibles introduce cannabinoids through the gastrointestinal tract. From the gut, Δ 9 -THC is absorbed into the bloodstream and travels via the portal vein to the liver, where it undergoes first-pass metabolism. Here, liver enzymes (primarily the cytochrome P450 system) hydroxylate Δ 9 -THC to form 11-hydroxytetrahydrocannabinol (11-OH-THC), a potent psychoactive metabolite that readily crosses the blood-brain barrier (Mura, Kintz, Dumestre, Raul, & Hauet, 2005). 11-OH-THC is more potent than Δ 9 -THC (Hollister, 1974; Hollister et al., 1981) and appears in blood in higher quantities when Δ 9 -THC is ingested than when it is inhaled (Huestis, Henningfield, & Cone, 1992); hence, it may be responsible for the stronger and longer-lasting drug effect of edibles vis-à-vis comparable doses of smoked cannabis (Favrat et al., 2005).

When inhaled through smoking or vaping, Δ 9 -THC reaches the brain, takes initial effect within minutes, and shows peak effect in about 20 to 30 minutes, with psychoactive effects tapering off within 2 to 3 hours (Grotenhermen, 2003; Huestis, Sampson, Holicky, Henningfield, & Cone, 1992). Although it takes longer for the initial psychoactive effect of edibles (30 to 90 minutes) to be felt, the resulting “high” is longer-lasting, with a peak at 2 to 4 hours after ingestion (Grotenhermen, 2003). Factors such as weight, metabolism, gender, and eating habits also contribute to how soon and for how long someone will feel intoxicated following oral ingestion (Grotenhermen, 2003; Huestis, 2007).

By contrast, several double-blind studies report comparable subjective effects for dronabinol and smoked cannabis when dose and time after administration are taken into account (Haney et al., 2007; Haney, Rabkin, Gunderson, & Foltin, 2005; Issa et al., 2014). One complication with these comparisons is that dronabinol contains only a synthetic version of Δ 9 -THC, whereas cannabis contains Δ 9 -THC plus a multitude of cannabinoids and other chemicals, including terpenes and cannaflavins (Russo, 2011).

Adopted emergency rule, 2014 Colo. Reg. Text 12885, amending 1 Colo. Code Regs. § 212-2