Important Changes to the Florida Hemp Statute – Prohibiting Products that are “Attractive to Children”

Senate Bill 1676 was signed into law by Governor DeSantis on June 27, 2023, and took effect on July 1, 2023. The law creates new requirements and restrictions regarding the appearance of hemp products. The new law amends paragraph (b) of subsection (2) and subsections (3), (7), and (12) of Fla. Stat. § 581.217, the statute on the state hemp program. Please see the following for some of these changes.

• The new law adds “attractive to children” to the list of definitions in subsection (3) of the statute. Paragraph (a) of  subsection (3) of the statute now provides that “‘[a]ttractive to children’ means manufactured in the shape of humans, cartoons, or animals; manufactured in a form that bears any reasonable resemblance to an existing candy product that is familiar to the public as a widely distributed, branded food product such that a product could be mistaken for the branded product, especially by children; or containing any color additives.”
• The new law adds paragraph (a)(3) to subsection (7) of the statute, and provides that, in addition to the other requirements, hemp extract may only be distributed and sold in the state if the product is distributed or sold in a container that: (a) is suitable to contain products for human consumption; (b) is composed of materials designed to minimize exposure to light; (c) mitigates exposure to high temperatures; (d) is not attractive to children; and (e) is compliant with the U.S. Poison Prevention Packaging Act of 1970, 15 U.S.C. ss. 1471 et seq., without regard to certain exemptions.
• The new law adds paragraph (d) to subsection (7) of the statute, which is an amended version of what used to be paragraph (c) on age restrictions for smoking hemp extract, and provides the following: “[p]roducts that are intended for human ingestion or inhalation and that contain hemp extract, including, but not limited to, snuff, chewing gum, and other smokeless products, may not be sold in this state to a person who is under 21 years of age.” The new paragraphs also details the penalties for violating this age restriction. 
• The new law adds paragraph (e) to subsection (7) of the statute, and provides in part that any “[h]emp extract products found to be mislabeled or attractive to children are subject to an immediate stop-sale order.”
• The new law amends subsection (12) of the statute to provide that the department alone shall adopt rules to administer the state hemp program; and it adds paragraphs (c) and (d) to the list of items the rules must provide for. These rules must now also provide for “(c) [p]ackaging and labeling requirements that ensure that hemp extract intended for human ingestion or inhalation is not attractive to children” and “(d) [a]dvertising regulations that ensure that hemp extract intended for human ingestion or inhalation is not marketed or advertised in a manner that specifically targets or is attractive to children.”

Based on the foregoing changes, here is what we know for certain. Hemp extract gummies and other edibles cannot be in the shape of humans, cartoons, or animals; be in a form that resembles an existing candy product that is familiar to the public as a widely distributed, branded food product or, in other words, a popular consumer candy, such as Jolly Ranchers, Life Savers, Nerds, Sour Patch Kids, Skittles, etc., such that the consumer–especially children–could mistake the product for a branded product; or contain any color additives. Beyond this, there is much left up to interpretation because of the way the new law was written.

Here is what is still unclear. An isolated reading of the definition for “attractive to children” could lead one to assume that the term refers merely to the physical characteristics of the hemp extract product itself, and not necessarily to the product’s packaging or labeling. However, the statute also provides that hemp extract products cannot be sold in a container that is attractive to children. There is no definition provided for the word “container,” but one could reasonably assume that “container” includes packaging and labeling and the overall outer appearance of a hemp extract product that is for sale. This would mean that packages and labels cannot be attractive to children or, in other words, cannot feature humans, cartoons, or animals, or look like popular consumer candy brands. This could potentially also extend to logos on the containers of hemp extract products. We know that the lawmakers’ intent in creating the new law is to protect children from consuming hemp extract products; and that the department has already begun strictly enforcing the new law and cracking down on hemp extract products that are attractive to children or in containers that are attractive to children. As such, we think it is likely safe to assume that the word “container” as used in the statute is a catchall that broadly covers packaging and labeling, and the overall outer appearance, of hemp extract products, at least until the department adopts more detailed rules. The commonsense definition of the word “container” supports this.

As mentioned, the statute also now provides that the department must adopt rules that provide for packaging and labeling requirements that ensure hemp products are not attractive to children and for advertising regulations that ensure hemp products are not marketed or advertised in a way that specifically targets or is attractive to children. The department has not yet adopted such rules or provided additional guidance on the new law. However, FDACS recently announced that a rule development workshop is being held on August 23, 2023–the purpose of which is to implement statutory changes passed during the 2023 Legislative Session, when the new law was passed. The Notice of Development of Rulemaking states that a rule update is required to implement statutory changes to the State Hemp Program. For the State Hemp Program, the rulemaking will update definitions, penalties for violations and the requirements regarding the operation of a Hemp Food Establishment, contaminants and limits, packaging, labeling, advertising, and the use of self-service machines. 

Also, as mentioned, the statute now provides that hemp extract edibles and other smokeless products cannot be sold to anyone who is under 21 years old. For hemp extract businesses with brick-and-mortar retail stores, this is easy to monitor. An in-person age verification is simple to conduct. For those businesses that offer hemp extract products for sale only through e-commerce, this is more difficult to track. Some websites simply include a checkbox which asks the purchaser to click to verify that they are 21 or over. However, it is unclear whether the department would deem this a sufficient process for verifying age, as a minor could easily check the box and lie that they are 21 or over. We recommend that e-commerce businesses institute more stringent age verification process. 

We are monitoring developments under the new law and will reevaluate after the department adopts new rules.