On April 16, 2021, Governor Jay Inslee signed Senate Bill 5372 (SB 5372), “An Act relating to hemp processor registration and a hemp extract certification into law.” SB 5372 went into effect on July 25, 2021, and creates a voluntary registration and certification program that hemp processors can opt-in to in the Evergreen State.
The purpose of SB 5372 is to allow Washington hemp companies to sell ingestible hemp products, like hemp-CBD, in other states that require certain safety standards. However, Washington does not allow for the sale of ingestible hemp products (other than hemp seed ingredients) and SB 5372 does not change that. Here are the answers to some common questions we’ve been fielding about how SB 5372 will work.
What is a hemp processor?
A hemp processor is any “person who takes possession of raw hemp material with the intent to modify, package, or sell a transitional hemp product.” (SB 5372 Section 2.) The Washington State Department of Agriculture (WSDA) will register hemp processors who elect apply for such registration.
What is hemp extract certification?
SB 5372 creates a “hemp extract certification,” defined as “a certification issued by the [WSDA] to a hemp processor manufacturing hemp extract (i.e., a substance or compound intended for human ingestion, derived from, or made by, processing hemp) for export to other states, which certifies the hemp processor’s compliance with Washington state’s inspection and sanitation requirements.” Section 1 (8) and (9).
Section 6 of SB 5372 focuses on hemp extract certification:
- Hemp extracts are not an approved food ingredient in Washington until it is federally authorized for use as a food ingredient. The FDA has long maintained that hemp extract (setting aside hemp seed products) is not an approved food ingredient.
- A hemp processor who wants to produce hemp extract as food ingredient to be sold in jurisdictions that allow it can apply for a hemp extract certification to certify compliance with Washington’s inspection and good manufacturing practices.
- The WSDA will regulate hemp extracts the same way it regulates other food. WSDA will issue hemp extract certifications in a manner that is similar to the way the agency issues other food processing licenses. Applicants must meet the same requirements as those required for food processing. This includes, but is not limited to, an inspection from the WSDA.
- Once hemp extract is approved as a food ingredient at the federal level, the WSDA will stop issuing hemp extraction certificates and hemp processors will be required to apply for food licenses.
In summary, a hemp extract certificate is like a food processing license tailored specifically for hemp.
Do Washington hemp processors need to register with WSDA?
Section 1 of SB 5372 explicitly states that a hemp processor registration is voluntary. Section 3 (2) states that a “hemp processor that processes hemp for commercial use or sale may register with the [WSDA]” (emphasis added). Compare that to WAC 16-306-010 which states that “licensing is required for persons to produce hemp” in Washington state.
A license is required to grow hemp. If you grow hemp without a license, you break the law. A license is not required for hemp processing. Hemp processing is legal with or without registration. SB 5372 makes registration an option for Washington hemp processors.
What are the benefits of a hemp processor registration and hemp extract certification?
Section 1 of SB 5372 summarizes the purpose of the Act and sheds light on what appears to be the main selling point of the new hemp processor registration:
The legislature intends to authorize and establish hemp processor registration and hemp extract certification necessary for entrance and compliance with interstate and international commerce and business requirements or stipulations in regard to hemp processing. A voluntary processor registration or hemp extract certification in lieu of a hemp processor license will allow persons or companies to ship transitional or final hemp products to states and countries that require a hemp processor license or registration. (Emphasis added).
Proof of registration will allow Washington hemp processors to prove to potential buyers in other states which only allow for the sale of hemp derivates that come from licensed processors. Registration as a hemp processor also indicates that the registrant is operating with oversight from a state agency, making their hemp extracts more appealing to vendors concerned about product liability. Put simply, registration equals legitimacy.
A hemp extract certificate helps to establish standards for the production of consumable hemp. Many states that allow the sale of hemp derivates, like CBD, require any hemp products sold in the state to be manufactured pursuant to that state’s food safety regulatory requirements. While state laws governing the processing and manufacturing of food may differ, they all generally follow the FDA’s standards and are therefore similar. The hemp extract certification indicates that a Washington’s hemp processor’s products are as safe as food.
Can hemp extracts intended for ingestion be sold or distributed in Washington?
No, hemp extracts intended for ingestion cannot be sold in Washington state. The WSDA issued a statement on hemp-CBD as a food ingredient back in August 2019 and SB 5372 does not change that policy.
Is there anything else I should know about SB 5372?
Section 4 of SB 5372 states that “any product with a delta-9 tetrahydrocannabinol concentration exceeding 0.3 percent on a dry weight basis is considered marijuana and is subject to the provisions of chapter 69.50 RCW.” In Washington, if a product has more than 0.3% THC then it is marijuana, even if it’s derived from hemp. Marijuana can only be sold within the state’s regulated market.
Anyone interested in Washington’s hemp market should pay close attention to the WSDA as it prepares rules. On July 20, the WSDA filed a “Preproposal Statement of Inquiry” regarding hemp extract certification. This is the first step in the rulemaking process. According to the WSDA’s website, the hemp extract certification rules should be published on August 4, at which point WSDA will schedule public hearings and receive written comments. We anticipate that the WSDA will soon initiate rulemaking regarding processor regulations as well.
You can contact Daniel Shortt at firstname.lastname@example.org or 206-430-1336.