Fall 2022 Cannabis Update

It has not been long since my last cannabis update, but there are some interesting new developments to report, most notably on drug identification and marijuana. Read on for the details.

The New (New) G.S. 90-94. I noted in my last post that S.L. 2022-32 amended G.S. 90-94, the statute proscribing Schedule VI substances. Under the original amendment, tetrahydrocannabinols (“THC”) from hemp and hemp products (as defined in G.S. 90-87), were excluded from the definition of THC in Schedule VI. As I initially wrote, this would have presumably had the effect of legalizing all hemp-derived THC—up to and including delta-9 THC sourced from legal hemp. However, I failed to realize that 12 days after that session law was passed, another session law again amended G.S. 90-94. Mea culpa (that post has since been amended). Pursuant to S.L. 2022-73, the current G.S. 90-94 states that products containing less than 0.3% delta-9 THC on a dry weight basis are excluded from the prohibition on possession of THC as a Schedule VI controlled substance.

That amendment is narrower than the original amendment. But like the original amendment, it suggests that all hemp-derived THC products other than delta-9 THC are legal so long as they are made from legal hemp and contain no more than 0.3% delta-9 THC. These other cannabinoids derived from hemp—including intoxicating ones like delta-8 THC, delta-10 THC, THCO, THCV, and others—are therefore legal. Notably, there is no 0.3% limitation or cap on the concentration of these types of cannabinoids, and there is no limit on the amount of the products that may be purchased.

As far as delta-9 THC goes, it is not entirely clear to me how the concentration limit works in practice. The provisions in G.S 90-87 and G.S. 90-94 relating to hemp both set the limit of delta-9 THC at 0.3% on a dry weight basis. That makes intuitive sense when we are talking about flower cannabis. What does it mean for highly processed products like extracts, that may come in resinous or liquid form? I am not sure. Delta-9 THC products sourced from legal hemp remain available (like the edible products here). The theory seems to be that so long as the ratio between the total weight of a product and the percentage of delta-9 THC is at or under 1000:3 (or 0.3% of the total), the product qualifies as a legal hemp product. For instance, a 10-gram edible product may lawfully contain up to 30 milligrams of delta-9 THC (or 3/1000 of the total weight). While delta-9 products are limited in terms of the THC concentration in this way, there is no limit on the amount of these products that may be purchased. That status quo seems unchanged by the recent legislation.

The Teague Decision. If you regularly follow our case summaries, you may have noticed State v. Teague in the batch of Court of Appeals decisions from September 6, which weighed in on various issues relating to marijuana prosecutions in the age of hemp. After the decision was issued, the defendant filed a motion for en banc review, asking the full Court of Appeals to review the three-judge panel’s decision. Before the State had an opportunity to respond to that motion, the original panel withdrew the opinion on its own motion and dismissed the motion for en banc review without prejudice to refile following a new decision by the original panel.

That new decision came this morning. State v. Teague, ___ N.C. App. ___, 2022-NCCOA-600 (Nov. 1, 2022). I will likely have more to say about the case soon (as this post was mostly written prior to its release). For the time being, I would just note that the Fourth Amendment challenge to the seizure and canine sniff of a package containing marijuana at a FedEx facility was decided on grounds that no Fourth Amendment search or seizure occurred. The Court alternatively held that the challenge was not preserved for appellate review. The Fourth Amendment holdings of Teague thus do not directly address the probable cause issues surrounding the legalization of hemp under the now-defunct Industrial Hemp Act. The Teague court nonetheless opines that the Industrial Hemp Act did not affect the State’s burden of proof in criminal proceedings “to the degree that Defendant contends,” while acknowledging that “our appellate courts have yet to fully address the effect of industrial hemp’s legalization . . . during the various stages of a criminal investigation and prosecution for acts involving marijuana.” Teague Slip op at 28. Make of that what you will. There are other interesting aspects of the decision bearing on the legalization of hemp, including pleading THC offenses under our former hemp law, but those will have to be left for another post. I suspect further review of the decision may well be sought either by way of a new motion for en banc review to the Court of Appeals or a petition for discretionary review to the North Carolina Supreme Court. If that happens, I will be sure to note it here.

(As an interesting aside, the Court of Appeals has been authorized to hear cases en banc since late 2016, but apparently has never done so. See Rule 31.1(e) of the N.C. Rules of Appellate Procedure.)

Lay Opinions Identifying Marijuana (and Other Drugs). We have so far seen a handful of decisions beginning to weigh the impact of hemp on marijuana prosecutions in the context of probable cause (see here and here) and just today one on reasonable suspicion (here). We have not yet had a decision taking on the drug identification issue. That is, does the precedent allowing the lay identification of marijuana by a trained officer based on sight or smell remain viable in the age of legal hemp? This issue was raised in Teague but was not decided on the merits—the Teague court assumed without deciding that the admission of lay testimony identifying an untested substance as “marijuana wax” and “THC” was error but found that the defendant could not show prejudice under the facts of the case. Teague Slip op. at 38. The Court of Appeals recently released State v. Booth, ___ N.C. App. ___, 2022-NCCOA-679 (Oct. 18, 2022), which similarly touches on, but does not squarely decide, the drug ID issue.

In Booth, a lab test identified the presence of THC in the alleged marijuana but did not test for THC levels (and therefore did not scientifically distinguish the substance from lawful hemp). In addition to the lab test, a Beaufort County deputy testified that not only could he distinguish hemp from marijuana by sight, he could also smell the difference in THC levels between the two. Booth Slip op. at 3. This of course is not scientifically possible, as the SBI and others have acknowledged. See, e.g., State v. Highsmith, ___ N.C. App. ___, 2022-NCCOA-560 (Aug. 16, 2022) at n. 1 (noting publications on this point). This testimony drew no objection from the defense, and any challenge under N.C. Evid. Rule 702 was consequently waived for appellate review.

Unpreserved evidentiary issues may be argued as plain error on appeal, but no such argument was made in Booth on this issue. As a result, no 702 challenge whatsoever was presented to the court. The issue was argued instead as a matter of sufficiency of the evidence. Because the State presented no reliable evidence identifying the substance as marijuana, the argument went, the State failed to present sufficient evidence and the motion to dismiss should have been granted. This argument is largely (if not completely) foreclosed by State v. Osborne, 372 N.C. 619 (2019). As I discussed here, when there is any evidence of drug identification in a case—whether the evidence was properly admitted or not—that evidence is sufficient to withstand a motion to dismiss for insufficient evidence. Put another way, all evidence, reliable or unreliable, counts under Osborne for purposes of the sufficiency analysis. Because there was some evidence before the trial court identifying the substance in Booth as marijuana, the motion to dismiss was properly denied.

This result is consistent with Osborne and applies in any drug case, not just marijuana prosecutions. The identification evidence in Osborne—lay opinions identifying a substance as heroin and field tests without any confirmatory lab analysis—was almost certainly inadmissible evidence under State v. Ward, 364 N.C. 133, 147 (2010) (generally requiring a scientifically reliable chemical analysis in drug cases as a matter of Rule 702). Because it came in without objection at trial, no 702 analysis was conducted on appeal and the defendant lost on the sufficiency issue. Per Osborne, Ward is all about admissibility of drug identification evidence under Rule 702, but Ward does not affect the sufficiency of evidence analysis one way or the other (at least where there is some evidence of the identity of the drug).

Booth thus serves as an important reminder to defenders about the Osborne rule. Where unreliable identification evidence is presented, there must be a specific objection under Ward and Rule 702, and any such objection (if overruled) must be renewed before the jury each time the evidence is referenced to preserve the issue for appellate review. Because that did not happen here (and because plain error review of the issue was not sought), it was not addressed on the merits at all. Instead, the issue lives to be decided another day.

State v. Arthur. That day may be sooner than later. The North Carolina Supreme Court recently accepted discretionary review in a case squarely presenting this issue—whether Ward applies to marijuana and whether Court of Appeals precedents to the contrary are mistaken and must be overruled. The order granting review is here; the Appellant’s brief and other documents relating to the case are here. In addition to the hemp argument discussed above, the defendant in Arthur makes the argument that the Court of Appeals has mistakenly been citing to the Court of Appeals decision in Ward instead of the North Carolina Supreme Court decision due to a citation error. The defendant also correctly notes that Ward did not carve out an exception for marijuana from its general rule. If and when Arthur is decided, we will have some guidance from our highest state court on marijuana identification in the age of hemp. I will be sure to cover this and any other cannabis developments as more cases are decided.

Counterfeit Hemp Products? Concluding with some hemp news, WRAL recently ran a story about allegedly counterfeit hemp products seized by the Roxboro Police Dept. Apparently, the seizures were based on perceived copyright violations and not due due to any allegation of higher-than-permissible THC levels of the products. The labeling of the products in the photos posted in the story is similar, but not identical, to popular candy and cereal products. They were also all clearly labeled as hemp products containing THC. I will leave it to intellectual property lawyers to discuss the merits of any copyright or trademark violations, but the Roxboro police apparently do not have any intention of bringing criminal charges in the case. I would note that the story incorrectly states that federal and state law set an age limit of 18 to purchase hemp-sourced THC products. As noted in my last update, neither state nor federal law set any age limit on the purchase or possession of hemp products. While I have yet to see a hemp store that allows underage purchase, that seems to be a matter of self-regulation and not due to any legal requirement.