Written by Whether you are a company with your own hemp-derived brand of gummies, beverages, smokeable products, or other ingestible or hemp-derived products, or a brewery or distillery or non-alcoholic manufacturer looking to enter the hemp-derived production space, this post is designed to help you synthesize and understand some of Tennessee’s new requirements pertaining to these products.
The Tennessee Department of Agriculture (“TDA”) has finalized the current version of its rules which, along with the current state statutes, govern all suppliers, distributors, and retailers of hemp-derived cannabinoid (“HDC”) products. As of Monday, July 1, 2024, the TDA has rolled out its online portal for the submission of license applications, as well as published emergency rules.
Find HDC application and rules HERE.
Under T.C.A. § 43-27-205, the TDA is charged to issue licenses for suppliers and retailers of HDC products; oversee supplier compliance for product labeling, testing, and transportation; and inspect HDC product sales locations for compliance with the HDC act. The TDA was required to promulgate rules to facilitate these responsibilities. The TDA Rules were emergency filed and are intended to serve as a starting place to facilitate the licensing process, which, under Tennessee law, was required to begin July 1, 2024. Some of the rules are intended to take effect now, where another group of the rules do not take effect until January 1, 2025.
Note that industry members have until October 1, 2024, to be licensed by TDA. In this post, we have attempted to provide detailed information regarding Tennessee HDC regulations and to synthesize all of the pertinent regulatory requirements covering the manufacture and sale of HDC products.
This post will first provide some general background information and then touch on product requirements. I will then summarize how to conduct the necessary criminal background check with fingerprinting. For ease of process, our office has found IdentoGo beneficial to use for criminal background checks with fingerprinting requirements.
PRODUCT REQUIREMENTS
- General Definitions
HDC Supplier/Wholesaler
“Supplier” means a person or entity that manufactures hemp-derived cannabinoids or sells products containing hemp-derived cannabinoids to retailers.
T.C.A. § 43-27-202(7).
What types products are governed under the new law(s)?
Please know that the requirements outlined herein (licensing, product safety, packaging, retail display, etc.) only apply to HDC products. HDC products are defined as follows:
(2) “Hemp-derived cannabinoid”:
(A) Means:
(i) A cannabinoid other than delta-9 tetrahydrocannabinol, or an isomer derived from such cannabinoid, that is derived from hemp in a concentration of more than one-tenth of one percent (0.1%); or
(ii) A hemp-derived product containing delta-9 tetrahydrocannabinol in a concentration of three-tenths of one percent (0.3%) or less on a dry weight basis;
(B) Includes, but is not limited to:
(i) Delta-8 tetrahydrocannabinol;
(ii) Delta-10 tetrahydrocannabinol;
(iii) Hexahydrocannabinol;
(iv) Tetrahydrocannabiphorol (THCp);
(v) Tetrahydrocannabivarin (THCv); and
(vi) Tetrahydrocannabinolic acid (THCa); and
(C) Does not include:
(i) Cannabichromene (CBC/CBCa/CBCv);
(ii) Cannabicitran (CBT/CBTa);
(iii) Cannabicyclol (CBL/CBLa);
(iv) Cannabidiol (CBD/CBDa/CBDv/CBDp);
(v) Cannabielsoin (CBE/CBEa);
(vi) Cannabigerol (CBG/CBGa/CBGv/CBGm);
(vii) Cannabinol (CBN/CBNa);
(viii) Cannabivarin (CBV/CBVa);
(ix) Hemp-derived feed products allowed under title 44, chapter 6;
(x) Hemp-derived fiber, grain, or topical products; or
(xi) A substance that is categorized as a Schedule I controlled substance on or after July 1, 2023, including a substance that may be identified in subdivision (2)(B);
T.C.A. § 43-27-202
To summarize the definition of HDC below, note that HDC includes the intoxicating products and underlying compounds that we are familiar with in the marketplace, such as hemp-derived Delta-8 THC, Delta-9 THC, Delta-10 THC, and THCa. All restrictions and regulations pertain to these compounds and products. HDC does not include products that only contain CDB and/or the other compounds listed under 43-27-202(C) above. This means that a portion of the products that you may produce or carry (e.g., CDB or CBD/CBG seltzers and other non-intoxicating products) do not have to comply with HDC requirements such as the retail behind the counter display requirements and HDC specific labeling requirements. Many industry members, however, will find it simpler to apply the HDC product requirement to all hemp products they carry.
Below are state law requirements, contained in statute, which are in effect now.
Summary of Statutory Requirements
- Licensing Requirement: T.C.A. § 43-27-203. Offenses
Any product that is sold or offered for sale by a non-compliant party or which is otherwise non-compliant is subject to seizure and forfeiture.
It is an offense to sell or distribute a HDC product an anyone under twenty-one (21) years of age.
It is an offense to sell or distribute sample of products containing a HDC in or on a public street, sidewalk, or park.
State and local law enforcement can enforce these laws.
- Display of Products in Retail Establishments: T.C.A. § 43-27-204. Inaccessibility of products in retail establishments
A product containing a HDC “must be maintained behind the counter of a retail establishment in an area inaccessible to a customer.”
A “retail establishment” for the purposes of the “behind the counter” requirement means any place of business that does not require that persons are 21 years of age or older to enter the premises. So, a business is only exempt from the behind the counter requirement if the establishment is 21+ toenter the premises.
What constitutes a “counter”? TDA has defined in its rules a retail counter as “a physical barrier that necessitates the seller’s assistance in order to access product prior to its sale. (Tenn. Comp. R. & Regs. 0080-10-02.02(2)(f)).
So how can products be displayed? In its July 15, 2024 webinar, TDA stated that it considers locked cabinetry, display cases, and/or coolers that are under the control of the seller to satisfy the counter requirement. We are communicating with TDA and have requested that they consider adding a dedicated area of a retail premises, where one must be 21+ to enter the aisle or other portion of the premises, to the list of acceptable methods of display. We must keep in mind that the policy behind this requirement, as described by the Tennessee Bureau of Investigation, is to prevent minors from being able to steal and/or access HDC products.
- Retail Location Restrictions: T.C.A. § 43-27-206. Licensing
A retail location cannot be located within 1,000 feet of a private school, public school or charter school that serves any grades from kindergarten through grade 12 unless the applicant provides the department with proof that products containing HDCs were being offered for sale at the establishment on or before December 31, 2023.
- Testing Requirements: T.C.A. § 43-27-207. Testing of products and substances
Full-panel testing on all active cannabinoid molecules must be conducted prior to final production of HDC products. In addition, a potency test must be conducted on finished goods/products to confirm potency of THC and other cannabinoids is consistent with what is on the packaging. These tests must be conducted by a third-party laboratory (not by the supplier or retailer). Note that each batch of product(s) must undergo separate testing and obtain a certificate of analysis by a third-party laboratory.
TDA is required to maintain and post on its website a registry of testing laboratories that are qualified to test HDC products. There is a process through TDA through which laboratories obtain qualification by TDA. TDA is required under state law to conduct random sampling and testing of HDC products in the state to ensure that all ingredients are consistent with legal allowances and with the laboratory test results maintained by industry members.
You will want to request copies of the two test results above and keep these results on file in the event of an audit by TDA or TDOR.
- Required documentation when transporting: T.C.A. § 43-27-208.
When transporting HDC, you must carry documentation sufficient to prove that the products being shipped or transported:
- Were produced from hemp that was lawfully produced under a valid hemp license issued by federal government or state or Indian tribe
- Do not exceed the cannabinoid limits for HDC products (via the lab test/certificate of analysis)
- A bill of lading that includes:
- Name and address of the owner of the products
- Point of origin of the products (your location)
- Point of delivery, including name and address
- Kind and quantity of packages or, if in bulk, the total quantity of products in the shipment; and
- Date of shipment
- These requirements do not apply to consumers who purchased from a retailer
- T.C.A. § 43-27-209. Packaging
Here are the requirements for your cans/container packaging (information card to be distributed to retailers for keg product):
(a) A product containing a hemp-derived cannabinoid that is sold at retail must:
(1) Satisfy the child-resistant effectiveness standards under 16 CFR 1700.15(b)(1) when tested in accordance with the requirements of 16 CFR 1700.20; and
This is an important one. Many are interpreting this to simply require separate, CR tops like these pictured below. However, some jurisdictions have ruled that current, standard aluminum can pull-tab tops already satisfy the requirements of this CFR, and we are in process of communicating with TDA to attempt to gain some clarity.
(2) Be labeled with:
(A) A list of ingredients and possible allergens and a nutritional fact panel;
(B) A warning statement concerning the risk of impairment from consumption of the product, keeping the product out of the reach of children, and other warning information as required by rule of the department of agriculture;
(C) If the product is ingestible, the amount of cannabinoid in each serving of the product, measured in milligrams;
(D) The total amount of hemp-derived cannabinoid in the entire package, measured in milligrams;
(E) The net weight of the product;
(F) A quick response (QR) code that can be scanned to access a website providing the product’s batch number, date received, date of completion, method of analysis for the testing report required under § 43-27-207, including information regarding results of the product’s full-panel and potency tests conducted pursuant to § 43-27-207(a); and
(G) An expiration date.
(b) A person who obtains a product containing a hemp-derived cannabinoid that is sold at retail shall store any unconsumed portion of the product in its original packaging. It is a Class C misdemeanor offense for a person to violate this subsection (b).
(c) A retailer or supplier of a product containing a hemp-derived cannabinoid shall not advertise, market, or offer for sale a product containing a hemp-derived cannabinoid by using, in the labeling or design of the product or product packaging or in advertising or marketing materials for the product trade dress, trademarks, branding, or other related imagery or scenery that depicts or signifies characters or symbols known to appeal primarily to persons under twenty-one (21) years of age, including, but not limited to, superheroes, comic book characters, video game characters, television show characters, movie characters, and unicorns or other mythical creatures.
(d) An ingestible product containing a hemp-derived cannabinoid shall not:
(1) Be sold in a serving that contains more than twenty-five (25) milligrams, in the aggregate, of one (1) or more hemp-derived cannabinoids; or
(2) Be formed into the shape of an animal or cartoon character.
(e) The department of agriculture is authorized to promulgate rules for the packaging, labeling, and display of products containing a hemp-derived cannabinoid that are offered for sale in this state.
Note: You must designate one owner or company officer as a “designated individual legally responsible” for the business. This individual must obtain a fingerprint background check which includes federal and state cross-reference.
A fingerprint background check can be obtained one of several ways. We recommend using the IdentiGo system for processing. Below please find a summary of the IdentiGo process as well as convenient locations in the major metropolitan areas.
Please find a link and summary of how to get started below. Please find a convenient list of locations in the major metropolitan areas attached. There are also locations outside of the major cities which we did not list on the attached document.
- Go to https://uenroll.identogo.com/workflows/111VVQ
- You will have the options to schedule or manage an appointment, locate an enrollment center, and what to bring.
- Follow the prompts for registration
- You will enter your personal information and choose which identification document you will be presenting at the appointment.
** it asks the reason for the FBI background check, use “Personal Review”:
- Personal Review
- Challenge Info on your record
- US Adoption
- International Adoption
- Live, work or travel in a foreign country
- Next you will choose the location you wish to take the fingerprinting and schedule an appointment. You will select a date and time for the appointment and submit.
Last modified: August 13, 2024
