For the hemp industry, it appears the beatings will continue until morale improves. Following the lead of a number of other states in recent years, the Alabama Legislature is set to consider a measure that would eliminate essentially all non-industrial hemp in the state.

Meet Alabama Senate Bill 132. This proposal, in its current form, “would provide that only non-psychoactive cannabinoids derived from or found in hemp are exempt from [Alabama’s] Schedule I controlled substances list, thus classifying psychoactive cannabinoids as controlled substances” under Alabama law. If enacted into law, that’s the ballgame for nearly all non-industrial hemp products in Alabama. Say goodbye to your increasingly popular THC-infused seltzers. Adios federally compliant gummies and the like.

Again, this type of proposal is not specific to Alabama. But since the 2018 Farm Bill, Alabama has had one of the least-regulated hemp programs in the country. The only meaningful regulation for the retail sale of hemp came last year when a law was enacted to restrict the sale of psychoactive hemp products to adults 21 years and older. As such, SB132 would be a watershed moment for the cannabis industry in Alabama.

What Is the Purpose of SB132?

This is where things get interesting and a little grayer and subject to skepticism and cynicism. Most supporters of proposals like SB132 point to two general goals: (1) keeping psychoactive hemp out of the hands of children and (2) keeping unsafe products off the shelves. These are laudable goals, are politically popular, and as discussed below, are welcomed by responsible hemp operators.

Time and again, we’ve seen measures like SB132 in other states. Many believe marijuana companies would far rather occupy a world without the competition of psychoactive hemp. And it’s not only a question of supply and demand: Rather, psychoactive hemp companies in Alabama are not currently hamstrung by the extremely onerous regulatory barriers and costs, as well as the extraordinary tax burdens, facing marijuana companies. [We can set aside that there isn’t currently an operating medical cannabis program in Alabama – a fact we have addressed in countless posts.] There is no doubt that marijuana operators face far more significant challenges than hemp companies, and it is certainly understandable that marijuana companies view psychoactive hemp companies not only as competitors, but competitors with an unfair advantage. And although I personally don’t believe there is any nefarious motive behind SB132, I guess I could see why grizzled marijuana veterans may believe that SB132 is a preemptive move by would-be medical cannabis operators to stave off competition once the medical cannabis program is off the ground.

Is SB132 Going to Become Law?

Listen, if I could predict the future with certainty, I wouldn’t be hammering out blog posts about legislative proposals. That said, for the reasons explained below, I am optimistic that legislators will revise the current language to allow medical marijuana and hemp to co-exist in Alabama.

On the one hand, even the most optimistic hemp advocate should realize that an entirely unregulated psychoactive hemp market will not remain in perpetuity. Nor, if we’re being honest, should it. On the other hand, as drafted, SB132 is overbroad and unnecessarily encompasses products that do not implicate the stated concerns of its supporters.

A Better Path Forward?

I suspect that certain psychoactive hemp restrictions will become law in Alabama in the current legislative session or in the coming years.

If it were my call, I would choose a path that regulates these products to ensure safety and only adult access, rather than to ban them outright. Put simply: regulate, don’t eliminate.

If the stated goals of the supporters of SB132 are to keep psychoactive hemp out of the hands of minors and ensure that psychoactive hemp is safe, then why not pass laws to keep psychoactive hemp out of the hands of minors and ensure that psychoactive hemp is safe?

When it comes to keeping psychoactive hemp out of the hands of minors, the purveyors of psychoactive hemp products should be required to employ the same type of age-gating policies employed by sellers of tobacco and alcohol. These policies have been in place for years and should be able to govern psychoactive hemp sales without much difficulty. And law enforcement – aided by law-abiding psychoactive hemp companies policing bad actors – should take the law seriously and enforce it just as they do tobacco and alcohol.

When it comes to ensuring that psychoactive hemp products are safe for consumption, the law should require that products undergo the same type of rigorous testing and analysis required of marijuana products. The products should be tested by independent laboratories and the results should be easily accessible and made available to consumers. Any batch that fails to meet the legal requirements for hemp or reveals unsafe materials in the batch should be destroyed before it is made available to the public.

In Alabama, this would be a substantial burden to many hemp manufacturers and retailers. But there are (at least) two reasons why it makes sense. First, responsible hemp operators welcome these types of regulation, and most of them are taking these steps already. Second, the law creates a higher barrier to entry into the psychoactive hemp market and makes it more difficult for less capitalized and unsavory companies. That should have the dual benefit of eliminating untested products and reducing the shelf space of what I call “gas station crank.”

This proposal would, as a practical matter, mean that the psychoactive hemp market would be dominated by increasingly popular hemp beverages and low-THC edibles. Those are two of the most popular versions of psychoactive hemp and have been widely accepted as alternatives to alcohol and controlled substances by cohorts ranging from young adults looking to turn away from alcohol in increasing numbers, middle-aged consumers looking to cut down on their midweek alcohol intake, and older Alabamians who increasingly look to psychoactive hemp for pain relief and sleep aids.

Conclusion

If we aren’t there yet, we are approaching the Alamo in the marijuana vs. hemp battle. And while I know certain of my clients on the hemp side and certain of those on the marijuana side believe that this is a zero-sum proposition, I’m reminded of the opening stanza from the poem that formed the title of this post:

No man is an island,

Entire of itself;

Every man is a piece of the continent,

A part of the main.

There is room for marijuana and hemp to co-exist in this country. That will require reform efforts that place the two on more even playing fields. In its current form, SB132 fails in that regard because it chooses one side over the other. But I remain hopeful that the stakeholders involved will see that their goals can be accomplished without banning psychoactive hemp. Again, regulate, don’t eliminate.

And for psychoactive hemp products, I guess it comes down to a simple choice, expressed so simply and poignantly by Andy Dufresne and Ellis Boyd “Red” Redding – “get busy living or get busy dying.”