/>iIt’s hard to be surprised when you’ve been writing and talking about government decisions about the cannabis industry over the past decade. But I’ll admit that my eyebrows raised when I read a recent letter from the solicitor general of South Carolina stating that, as a general rule, hemp beverages containing less than .3% delta-9 THC on a dry weight basis are legal.
Don’t get me wrong, I wasn’t surprised because I thought the analysis was wrong. I was just surprised to see such a reasonable analysis of a complex, politically fraught issue from a socially conservative administration that has famously been near the back of the line on cannabis liberalization.
Although as we discuss below, while the letter addresses a number of measures that can and perhaps should be put in place to more thoroughly regulate South Carolina’s hemp regime, the legal analysis employed by the solicitor general is a model of simplicity. Put simply:
- “This legalization of hemp is the result of passage by Congress in 2018 of the Farm Bill and the enactment by the [South Carolina] General Assembly in 2019 of the Hemp Farming Act.”
- “In each of these pieces of legislation, hemp and hemp products were removed from the classification of a controlled substance and made legal if they meet the foregoing standard of concentration.”
- “Any drink which meets this requirement is legal.”
Simple as that, I guess. But this was far from a total victory or “blanket” green light for all beverages containing hemp that many advocates seem to have assumed since the letter was released. It would be a mistake to assume that the solicitor general did not carefully consider the issue or the ramifications of his conclusion.
First, he acknowledged:
“It is clear… that the overarching purpose of federal and state hemp legislation was the deregulation of hemp for its use in agricultural endeavors… Application of the legislation to THC-infused drinks was… a ‘consequence’ of the legislation but clearly not the principal focus of lawmakers.”
Second, he spent a substantial portion of the letter talking about cases involving the challenges in determining the difference between hemp and marijuana in practice. “The problem is determination of the THC content in a particular drink or category of drink sold… Just as with respect to the legality of any other substance, this is a factual question, beyond the scope of opinion of this office, and is an issue for law enforcement and the courts to determine.” And “the legality of a particular THC-infused drink must be determined individually.”
Third, he suggested that “state lawmakers should consider revisiting South Carolina’s Hemp Farming Act of 2019 to address the various issues surrounding the regulation of hemp-infused drinks and food products, such as public health and safety concerns.” He even pointed to issues addressed by other state legislatures on the issue:
- Whether children can purchase the products;
- Whether there should be age limits;
- Whether labeling requirements are required; and
- Whether the products are safe.
Nevertheless, he again concluded that “[i]f such a drink meets [the 0.3% THC] statutory requirement, it is legal under current law… Beyond that, this office in an opinion, cannot go. The Legislature may wish to further address the many issues raised herein—including public health—arising from the sale of THC-infused drinks.”
Based on the ultimate conclusion of the solicitor general and the invitation to the legislature to consider placing certain guardrails in place to regulate the sale of hemp beverages, we expect to see a number of those proposals to receive substantial support during the next legislative session.
The question of the legality of hemp-derived and hemp-infused products has been a hot button for states this year, and there have been remarkable developments in just the past week. It’s notable that the South Carolina pronouncement is a marked departure from the conclusion reached by the attorney general of Mississippi – which we discuss in detail here – and California’s decision to ban a huge portion of the hemp market – discussed here.
And all of these developments, of course, take place in the shadow of the upcoming federal Farm Bill. That legislation may moot these issues, bring greater clarity, or invite even more chaos.
Strap in. We’ll be here for all your hemp-related news. We invite you to join us.
