You may recall a well reasoned decision from an administrative law judge regarding a determination of nonmailability over “1170 grams of a white powder identified as a cannabinoid product” back in September in KAB, LLC v. U.S. Postal Service. In that decision, KaB, LLC, appealed a determination of nonmailability made by the U.S. Postal Inspection Service after it seized KaB’s product created pursuant to a pilot program under the Agriculture Act of 2014. The administrative appeal of the determination ended in KaB’s favor and a finding that products created in conjunction with the authorized federal program were mailable thanks to clarifying amendments made to the program by appropriations bills:
Giving “transportation” its plain meaning, I find that it includes any method of transportation commonly used in the marketplace by business, which includes the United States mail. Accordingly, as Congress currently permits the interstate sale, transportation, and distribution of exempt industrial hemp pursuant to the most recent appropriations act, I find that exempt industrial hemp and products derived from exempt industrial hemp are mailable.
It appears this reasoning has now sparked some further guidance and a change in position from the USPS (assuming you can call the actions of the inspectors in KaB the ‘position’) resulting in the USPS issuing guidance on the “Acceptance Criteria for Cannabidiol (CBD) Oil and Products Containing CBD.”
The new guidance from the USPS sets out the procedure and required documentation for the USPS acceptance of a CBD oil or other CBD product derived from industrial hemp.
Any mailer who presents CBD oil or other CBD products derived from industrial hemp for mailing must demonstrate that their mailing is compliant with the Agricultural Act of 2014 by providing the following documentation:
- 1. A signed self-certification statement, subject to the False Statements Act (18 U.S.C. §1001). Statements must be printed on the mailer’s own letterhead, must be signed by the mailer, and must include the text “I certify that all information furnished in is letter and supporting documents are accurate, truthful, and complete. I understand that anyone who furnishes false or misleading information or omits information relating to this certification may be subject to criminal and/or civil penalties, including fines and imprisonment.”
- 2. The industrial hemp producer possesses a license issued by the Department Agriculture, for the state where the Post Office/acceptance unit is located, which includes documentation identifying the producer by name and showing the mailer is authorized by the registered producer to market products manufactured by that producer.
- 3. The industrial hemp, or products produced from industrial hemp, contains a Delta-9 THC concentration of not more than 0.3% on a dry weight basis.
Mailers must provide, at a minimum, a signed self-certification statement on their own letterhead, a document showing the mailer has authorization to market CBD products by the entity registered or licensed by the State, and a lab report detailing the THC concentration of the CBD product.
The you can read the full letter below. The main points are the sworn statement, the state licensure and the lab report. Surely a step forward from having the products seized by the Postal Inspector.