As Florida continues trying to prevent kids from getting drawn to intoxicating hemp products, state regulators are gearing up to define what a "cartoon" means — but industry insiders say the plan isn't likely to resolve confusion over what's allowed on packaging of gummies, sodas and other products.
The Florida Department of Agriculture and Consumer Services will hold a workshop Wednesday to take comments on a proposed rule seeking to carry out a 2023 law that prohibits hemp products from being "attractive to children."
Under the law, "attractive 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 proposed rule would define a cartoon as "any drawing or other depiction of an object, person, animal, creature, or any similar caricature" that meets certain criteria, including "the use of comically exaggerated features," the "attribution of human characteristics" to animals, plants or other objects, or the "attribution of unnatural or extra-human abilities, such as imperviousness to pain or injury, X-ray vision, tunnelling at very high speeds, or transformation."
The proposal is part of a crusade by Agriculture Commissioner Wilton Simpson to crack down on hemp-based products that can appeal to children. Such products are available at smoke shops, gas stations and other retail stores. Agency inspectors have removed more than 800,000 products for child-protection violations since the 2023 law went into effect, according to a news release from Simpson's office.
Some industry representatives say they would welcome tighter regulations if the rules would set clearer standards about what's legitimate and what isn't. They contend inspectors have too much leeway on how to interpret what's attractive to children.
"The industry fully supports reasonable, well-defined regulations that protect public health and prevent youth access," attorney Paula Savchenko, who represents clients across the hemp industry, told The News Service of Florida.
But Savchenko said that recent enforcement actions and the proposed rule "have raised legitimate concerns" in the industry.
"The language in the rule, such as prohibitions on 'comically exaggerated features' or 'unnatural abilities,' is highly subjective. This creates uncertainty for businesses that are trying to comply in good faith, especially when similar design elements are allowed in other regulated industries like dietary supplements, energy drinks, or alcohol," she said.
The hemp industry for years has wrangled with state lawmakers and Simpson's agency over attempts to curtail sales of gummies, flower, vapes and other intoxicating products, which can be more potent than products sold by the state's highly regulated medical-marijuana operators.
The hemp industry nailed a major victory last summer, when Gov. Ron DeSantis vetoed a far-reaching measure that would have severely restricted sales and production of euphoria-inducing hemp-based products. DeSantis' veto came as he campaigned fiercely against a proposed constitutional amendment that would have legalized recreational marijuana. An attempt to revisit hemp restrictions did not gain traction during this spring's legislative session.
Disagreement about the interpretation of the prohibition against products that are "attractive to children" isn't new.
The Florida Healthy Alternatives Association, which represents manufacturers, retailers and consumers of hemp-based products, filed an administrative complaint in October challenging an earlier version of the proposal. The association reached a settlement with Simpson's agency in January and dropped the challenge.
J.D. McCormick, president of the association, said he appreciates the agency's latest attempt to revise the rule "because the industry needs more clarification."
But, he added, "in that attempt to clarify, you can't take it too far and leave some of it ambiguous or vague."
The proposed rule could be interpreted to mean that any drawing of a human being or an animal is off-limits, McCormick suggested in an interview. The issue is especially salient as hemp-based beverages that can give consumers a buzz compete with alcoholic products sold in liquor stores.
"That's, I think, the difficult part," he said. "The reality is anything and everything that is illustrated at all and that's the difficult part for us."
Simpson, however, appears to have little sympathy for the industry's concerns.
"The hemp industry has short-term memory loss. They begged Florida not to cap high-THC products while at the same time offered their support for any effort to keep these products out of the hands of children. They knew we asked for the strongest child protective laws in the nation," Simpson said in a statement provided to the News Service, using an acronym for the euphoria-inducing tetrahydrocannabinol.
The agriculture commissioner noted that the 2023 hemp law passed unanimously in the House and the Senate before DeSantis signed it.
"They don't need butterflies, clowns, frogs, and flowers to sell their drugs. Leave Florida's children alone," Simpson said.
The proposed rule would directly affect some companies whose logos feature cartoons of animals or plants engaging in human activities. The businesses, which operate in multiple states, would have to change their labels to produce or sell their products in Florida.
Jonathan Robbins, an attorney who represents hemp manufacturers and businesses, said his clients are among those whose products have been pulled from shelves. He also has been challenging the agriculture department's interpretation of the 2023 law.
Robbins acknowledged that most industry operators support keeping products off the shelves that appeal to kids.
"They're just saying, we need reasonable regulation and then we need that regulation to be enforced in a consistent and not arbitrary manner, so we can have an idea of what it is we can do and what it is we can't do," Robbins said.
Robbins said inspectors have too much discretion when interpreting the law. As a result, products that might be deemed in violation by one inspector might pass muster by another.
The proposed rule goes too far in restricting the free speech and expression of hemp businesses, according to Robbins.
"We're all in favor of regulation but we want statutes and rules that we actually know what we can do and we want statutes and rules that are not so overbroad and restrictive that it goes beyond protecting children and starts handcuffing us in terms of freedom of speech and expression," he said.
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