Marijuana Beer: Still Not Legal in Florida

Creative Commons License. Carlos Garcia.

For several months, we’ve been hearing about the introduction of marijuana-infused beer. Most of these products feature non-psychoactive cannabidiol (CBD), but beer brewed with tetrahydrocannabinol (THC)–the compound that gives marijuana its best-known quality–will so reach the market.

So, is marijuana-infused beer legal in Florida? In June 2018, the answer is no.

Even for hemp-derived CBD or low-THC compounds, it is illegal in Florida to use, sell, or possess any part of any Cannabis sativa plant (see Florida Statutes Sections 893.02(3) and 893.03(1)(c)(7)), except for the specific statutory exceptions of medical marijuana (Section 381.986), research by children’s hospitals on low-THC cannabis (Section 385.211), and industrial hemp research by state universities (Section 1004.4473).

There are a few facts and scenarios that may initially make it appear that CBD can be used in beer or other commercial products, including narrowly limited exceptions at the federal level, and the appearance of lack of enforcement at the state level.

CBD-Infused Beer is Permitted Under Federal Law

From a federal standpoint, the TTB has had a Hemp Policy in place since April 3, 2000. The TTB allows the use of “hemp” in alcoholic beverages, subject to submission of formulas for lab analysis for the detection of THC, and other requirements. Without providing a formal definition of “hemp,” the TTB states parenthetically, “(oil, seeds, etc.).” It is unclear what the TTB meant by “etc,” or even which plant it refers to for “hemp,” but reference to THC clearly means Cannabis.

The U.S. Controlled Substances Act (21 U.S.C. §802(16)) sets forth the parts of the Cannabis sativa plant which are legal and illegal to use and possess. It states that “marihuana,” which is the U.S. Code antiquated spelling, “means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.” However, it goes on to carve out exceptions to the definition of marijuana – “Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, or any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, cake or the sterilized seed of such plant which is incapable of germination.”

The DEA has explicitly stated in a March 2017 clarifying statement that “[i]f a product consisted solely of parts of the cannabis plant excluded from the [Controlled Substances Act] definition of marijuana, such product would not be included in the new drug code (7350) or the drug code for marijuana (7360).” This means hemp/stalk/fiber/seed oil is exempt. CBD extracted from the exempted parts of the Cannabis, that would be legal under federal law, but only in states where it is not prohibited by state law.

CBD-Infused Beer is Not Permitted in Many States, including Florida

Because of the federal exceptions, some claim that hemp and hemp-derived CBD is legal in all 50 states. This isn’t true. Florida drug enforcement statutes (Florida Statutes Sections 893.02 and 893.03) provide no exceptions for any part of the Cannabis plant, no exception for low-THC cannabis, and explicitly includes in the prohibition any compound or mixture derived from the plant, its seeds, or resin, which includes hemp and CBD compounds. Until passage of the industrial hemp research statute in 2017 means, it wasn’t even legal for state universities to research hemp, because of the legal restrictions on possessing it. Synthetic cannabinoids are also illegal in Florida (Florida Statutes Section 893.03(1)(c)(190)).

Despite federal exceptions that permit CBD-infused beer, it is not legal in Florida to put CBD derived oil or compounds in beer or any other commercial products in Florida. This will continue to be true until Florida law is changed.

Do you have questions about what you can include in your beer or other alcoholic beverage? We help a lot of beverage manufacturers develop formulas that pass legal muster. Contact us at contact@brewerlong.com if we can help you.