It’s been nearly a year since I’ve written about cannabis issues in the state. Many of the issues I’ve discussed here before remain unresolved, but there has been recent legislation and a new case impacting this area. This post examines the current state of the law on hemp and marijuana.
Hemp Legislation. As readers may know, S.L. 2022-32 was passed on June 30, 2022, the same day that the previous laws authorizing legal hemp were set to expire. See G.S. 90-87(16) (2021). A few days later, S.L. 2022-73 was passed as well, which modifies part of S.L. 2022-23 impacting hemp. In short, the legislation permanently authorizes hemp and hemp products in the state. All the changes are directed at distinguishing legal hemp from marijuana and legal THC from illegal THC. Under the former statutory scheme, “industrial hemp” was excluded from the definition of marijuana if it met the requirements of G.S. 106-568.51. The laws in Article 50E of Chapter 106 creating an industrial hemp program expired on June 30 of this year and were not renewed. Thus, hemp is no longer defined by reference to agricultural law and is instead defined by our drug laws in Chapter 90 of the General Statutes. Let’s take a closer look.
The New Definitions in G.S. 90-87. This statute has been amended to define hemp and hemp products and to change the definition of marijuana to specifically exclude those products. “Hemp” as defined in the new G.S. 90-87(13a) means all parts of the cannabis plant with no more than 0.3% delta-9 tetrahydrocannabinol (“THC”) on a dry weight basis. Hemp products are defined to include all products made from hemp under G.S. 90-87(13b). Marijuana is now defined to exclude hemp and hemp plants without limitation and without an expiration date under the new G.S. 90-87(16).
Gone is the requirement that hemp be produced by a grower licensed by the State (although I can’t say I ever saw that requirement enforced). Also gone is the requirement that hemp be produced and used in compliance with the rules issued by the now-defunct State Industrial Hemp Commission. A permit is still required to grow hemp, but North Carolinians must now apply to the U.S. Dept. of Agriculture for a hemp permit.
More significantly, the definition of hemp now explicitly provides that “hemp” includes all extracts, derivatives, cannabinoids, isomers, and the like. Our state definition now tracks the federal definition in this way. 7 U.S.C. 1639o. As I discussed here, state law did not formerly address extracts, derivatives, and isomers, which created some confusion regarding the legality of THC isomers like delta-8 THC and delta-10 THC (among others). The revised language indicates that such products qualify as legal hemp products, as long as they are sourced from hemp.
The New Schedule VI under G.S. 90-94. The former version of this statute prohibited “THCs” without limitation. This too created confusion about whether products like delta-8 THC could potentially be treated as illegal THC, even when sourced from hemp. S.L. 2022-32 amended the statute to exempt tetrahydrocannabinols found in hemp and hemp products from the general prohibition on THCs, but S.L. 2022-73 quickly amended that exemption from covering all hemp and hemp products to covering only products with less than a 0.3% delta-9 concentration on a dry weight basis. Under the amended statute, a product containing other types of THC like delta-8 THC do not fall within the prohibition on THC unless it contains an illegal amount of delta-9 THC.
What Does this Mean? We have known for some time that more traditional hemp products like hemp flower or CBD products made from hemp are legal under state and federal law. With the amendments to Chapter 90 discussed above, it is now clear that the more exotic products like delta-8 THC are also legal under state law as extracts, derivatives, or isomers of hemp (assuming they are sourced from hemp and do not contain an illegal amount of delta-9 THC).
An earlier version of this post suggested that the delta-9 THC concentration limit did not apply to hemp products under S.L. 2022-32. Given the amendment in S.L. 2022-73 to G.S. 90-94, it appears that limit does now apply to hemp products. Thus, any cannabis product with a delta-9 THC concentration over 0.3% limit can be treated as illegal THC. However, nothing in the laws prohibit other types of THC products like delta-8 THC, and there are no limits on how these products can be concentrated beyond limiting the amount of delta-9 THC. Further, the limit on delta-9 THC “on a dry weight basis” seems designed for cannabis plants and their flowers, and it is unclear to me how that limitation applies in the context of highly processed hemp product like distillates and extracts. Finally, given the plethora of cannabis products on the market and the lack of regulation (discussed more below), it seems that many defendants can claim not to have known that a given product was illegal contraband versus a legal hemp product, regardless of the actual delta-9 THC content. Under State v. Perez, 55 N.C. App. 92 (1981), if the defendant presents evidence that she didn’t know what she had was an illegal drug, the State must produce some evidence that the defendant knew she possessed a controlled substance and the jury must be instructed on the issue. See N.C.P.I.- Crim. 260.10.
More Regulation to Come? While the new law clarifies the scope of the definition of hemp, there remains remarkably little regulation of the hemp industry once the products leave the hands of producers. Federal and state law restrict the age at which nicotine products may be purchased (including any vape products containing nicotine), but there is no specific age prohibition on hemp flowers, vape products, edibles, tinctures or the like when they do not contain nicotine. See G.S. 14-313. There are similarly no regulations on where the products can be used (including while driving), how much of the products can be purchased, or the point at which a person can be considered intoxicated for purposes of driving while impaired and related offenses. There are also no regulations on quality assurance to safeguard consumers from products that may contain pesticides, heavy metals, or other contaminants. That said, the Food and Drug Administration has recently issued warning letters to several companies for violations of its existing federal regulations on branding, health claims, and the addition of cannabinoids to food products, which may indicate a renewed push to at least enforce those (fairly limited) rules.
Recent Case Law. Not only do we have the new legislation discussed above; there is a new case as well. The Court of Appeals released its second decision referencing the potential issues surrounding probable cause and cannabis this week. I previously noted State v. Parker, 277 N.C. App. 531, 541 (2021), which observed that the existence of legal hemp may affect probable cause determinations based on the alleged odor of marijuana (though finding probable cause on the facts of the case). In State v. Highsmith, 2022-NCCOA-560, ___ N.C. App. ___ (2022), we get a similar result.
Officers conducted a canine sniff during a traffic stop, leading to the discovery of apparent marijuana under the driver’s seat. The defendant challenged the search, arguing in part that an alert by a canine trained to detect THC cannot supply probable cause in light of legal hemp. The State pointed to additional factors in support of probable cause, such as inconsistent statements of the driver and passenger, the defendant’s prior history of drug crime known to the officers, and evidence that none of the occupants were the registered owner of the vehicle, and argued that it was a “K-9 sniff plus” case. The trial court agreed with the State and denied the motion to suppress, finding probable cause under the totality of circumstances. The defendant was ultimately convicted of felony possession of marijuana at trial and subsequently pled guilty to obtaining habitual felon status.
The trial attorney did not object to the search at trial, waiving appellate review of the issue. Although it appears that appellate counsel sought plain error review of the issue (the brief is here), the Highsmith court found that the search was not properly challenged on appeal. “The defendant does not argue on appeal that the search of the vehicle was unconstitutional.” Highsmith Slip op. at 6. Instead, the court cast the defendant’s argument as a challenge to the sufficiency of the findings supporting the denial of the motion. Rejecting that challenge, the court observed: “Defendant overlooks Conclusion of Law 7, which explicitly states that Defendant’s ‘rights against unreasonable detentions, searches and seizures . . . have not been violated.’” Id. at 8. Because the finding by the trial court that the defendant’s constitutional rights were not violated was sufficient, the Court of Appeals affirmed the denial of the motion to suppress.
Given the posture of the case and the seemingly narrow holding of the court, I’m not sure how much precedential value it has as far as probable cause decisions involving suspected marijuana. If anything, the trial and appellate courts in Highsmith and Parker seem to be applying an observation-plus standard, whereby something more than the mere sight or odor of cannabis (or canine alert) will be necessary to establish probable cause to search for or seize suspected marijuana (a standard I previously suggested may be appropriate in light of the current state of affairs).
In any event, to paraphrase Mark Twain, media reports concerning the demise of probable cause issues surrounding hemp versus marijuana are, at best, premature. Other cases more neatly raising the probable cause issue (and other issues) are coming down the pipe from the appellate division, and it seems likely that more are to come–some of which will presumably be in a different procedural posture and potentially subject to a different standard of review on appeal. If and when that happens, you can read all about it here. In the meantime, I encourage defenders to continue raising and litigating this and other issues with marijuana prosecutions in the state.
As always, if you have any questions, concerns, or feedback, I can be reached at dixon@sog.unc.edu.
Author’s Note: Special thanks to Marne Coit and Rod Kight for their valuable insights and feedback on this post.