Six years ago, the Hemp Farming Act of 2018 went into effect as federal law, legalizing certain marijuana derivatives as “hemp.” Under the federal definition, hemp is classified as products derived from the Cannabis sativa L. plant with a delta-9 tetrahydrocannabinol (THC) concentration at or below 0.3%. Cannabis products above this threshold are still classified as “marijuana,” which is recognized as a Schedule I controlled substance. Notably, the Cannabis sativa L. plant contains more than 100 cannabinoids, but the federal statutory scheme recognizes only delta-9 THC as the cannabinoid indicating whether a substance is hemp or marijuana. This federally recognized distinction between hemp and marijuana gave rise to a new industry, with states providing further regulation through their own state plans. The legislation expressly preserved and deferred to the FDA’s authority over hemp products, further bolstered by encompassing the definitions from Title 21 of the United States Code, which contains regulations for food and drug products, including hemp.

Alabama’s state hemp plan is extensive, providing definitions that expand on and encompass the federal definitions of hemp, while simultaneously regulating growers, cultivators, regulators, and processors of hemp products. These regulations are targeted at growers, cultivators, handlers, and processors of hemp products, but are silent regarding retailers and distributors of the end product. This silence, coupled with the details of Alabama’s testing procedures, reflect a legislative desire to regulate and oversee the industrial hemp industry at the source, testing samples from the seeds and plants of growers rather than the stock of a retailer.

In the backdrop of this regulatory scheme, another cannabinoid found in Cannabis sativa L., delta-9 tetrahydrocannabinolic acid (THCA) has been thrust to the forefront of legal discussion. THCA is a precursor to THC, and states vary on their treatment of THCA. Although it is undisputed that THCA is relevant to total delta-9 THC concentration, many states, including Alabama, fail to specifically provide for this measurement in their controlled substance classifications, creating ambiguity for retailers, distributors, and customers. Litigation in other states sheds some light on this issue, with courts in other states limiting state authority to the regulations provided in their respective state plans. When certain states and localities expressly provide for THCA testing, or for total delta-9 THC content to be the determinative factor of whether or not a substance is hemp or marijuana, courts have allowed THCA content to be considered when deciding if a substance exceeds the maximum legal concentration for hemp. In jurisdictions where the state plan is silent on the matter, however, courts defer to the federal classifications, and consider only delta-9 THC content, rather than total delta-9 THC content including THCA, when deciding whether a substance is hemp or marijuana.

Although this distinction seems minor, the legal implications are significant. THCA, when heated, turns into THC, meaning certain products that would otherwise be classified as hemp could exceed the 0.3%. Certain states, recognizing the gap in federal law, have passed legislation outlawing or restricting THCA, while lobbyists in other states are calling for updated policies that clearly define these lines for producers, retailers, and consumers. As it stands, however, most states have failed to address the issue, leaving the same gaps present in federal statute, and allowing THCA content to remain unrestricted.

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