Rosen Harwood Blog

Regulation of Industrial Hemp, CBD, and Medical Cannabis: What are Alabama's Current Cannabis Laws?

Due to the significant changes in both Alabama and federal law in recent months, keeping up with the current state of Alabama cannabis laws can be overwhelming. In September, the Alabama Department of Agriculture & Industries (ADAI) released regulations providing guidance for Alabama’s Industrial Hemp Pilot Program. In December, the 2018 Farm Bill defined industrial hemp as an agricultural commodity and removed it from the Controlled Substances Act (CSA). The ADAI began accepting applications from potential industrial hemp growers and processors in January and issued 218 hemp grower and processor licenses in April. Stores selling hemp and cannabidiol (CBD) products are opening up across the state, and the Alabama Attorney General issued a statement acknowledging that some CBD is legal and able to be produced and sold to the public in Alabama. Most recently, in a historic vote in May, the Alabama Senate passed the Compassion, Access, Research and Expansion Act (CARE Act), which, if passed by the Alabama House of Representatives and signed into law, would allow the sale and cultivation of medical grade cannabis in the state of Alabama. Navigating the federal and state laws and associated regulations can be challenging, but for those who want to be involved in this burgeoning industry, an understanding of the quickly changing rules and regulations is critical.

Cannabis Biology – What Do I Need to Know?

Before diving into the legal particulars of industrial hemp, CBD, and medical cannabis, a bit of background on the cannabis plant can be helpful. Cannabis sativa L. is the species of plant that is regulated, and in some instances, restricted, under state and federal laws. Both industrial hemp and what is legally defined as marijuana are strains of the plant Cannabis sativa L., and CBD is one of the chemical compounds found in the cannabis plant.  Cannabis sativa L. also contains delta-9-tetrahydrocannibinol (THC), the chemical compound that can give the plant psychoactive properties. Different strains of Cannabis sativa L. can contain different levels of THC. Determining the concentration of THC in a cannabis strain is key to understanding which laws apply to the plant and CBD derived from the plant. 

Industrial Hemp is genetically different from marijuana because it has much lower levels of THC. Industrial hemp is specifically defined as any one of the plant species Cannabis sativa L. that contains less than 0.3% THC on a dry weight basis. Under the 2018 Farm Bill, industrial hemp is removed from regulation under the CSA and is now considered under federal law to be an agricultural commodity. Growing, processing, and selling industrial hemp is now legal in the state of Alabama, although it is still highly regulated. Conversely, marijuana is legally defined as any part of the plant species Cannabis sativa L. with a concentration of more than 0.3% THC. Marijuana remains a Schedule 1 drug under the CSA and is currently not legal in the state of Alabama.  CBD is derived from Cannabis sativa L., either from the industrial hemp or marijuana variety. While CBD itself does not contain THC, different laws can apply to CBD depending on whether it is derived from industrial hemp or marijuana, or whether it is combined with THC when sold as a product. 

Industrial Hemp in Alabama

Industrial hemp may be used as a seed, a fiber, or a dual-purpose crop. This crop’s versatility gives farmers and processors a wide variety of options when growing and processing hemp. For example, the bast fibers are used in everything from diapers to automotive parts, the shives are used in things like printing paper and building materials, and the seeds are used for human food, oils, paints, and personal hygiene products like shampoo and soap. With such a wide variety of uses it becomes more apparent how hemp has the potential to disrupt the farming industry and become a large revenue source.

The Agricultural Act of 2014, commonly referred to as the 2014 Farm Bill, created a pilot program which allowed State Departments and institutions of higher education to grow and cultivate hemp. In 2016, Alabama created the Alabama Industrial Hemp Research Program for hemp research to be conducted in Alabama, and released regulations for implementation of the program in 2018. Currently, only those who are approved to participate in the Alabama Industrial Hemp Research Program are legally able to grow or process hemp within the state of Alabama.

With the recent passage of the 2018 Farm Bill, the production of hemp is now regulated by the United States Department of Agriculture (USDA). Although the 2018 Farm Bill is still in the implementation phase, it will soon pave the way for commercial growers to cultivate industrial hemp across the country. The USDA is currently developing regulations for monitoring and controlling the production of hemp, but under the 2018 Farm Bill, each state has the option of submitting its own proposal for regulating the production of hemp within its borders. The Alabama Legislature is set to soon vote on SB 225 to “require the Department of Agriculture and Industries, in consultation with the Governor and Attorney General, to develop a plan for monitoring and regulating the production of hemp, and submit the plan to the federal Secretary of Agriculture.” Passage of SB 225 would allow the state to start giving licenses to cultivate hemp under the 2018 Farm Bill, rather than the 2014 Farm Bill.

Cannabidiol (CBD) in Alabama

Forecasters have slated cannabidiol, or CBD, to be one of the biggest products of the industrial hemp market in the coming years. CBD is a non-psychoactive compound found within the cannabis plant which has been known to have many uses for treating various ailments such as epilepsy, post-traumatic stress disorder, nausea, and anxiety. CBD may be harvested from any cannabis species, but only CBD derived from hemp is currently legal within Alabama and the United States. Many CBD products also contain various amounts of THC, but currently only products containing less than 0.3% THC are considered legal to the general public in Alabama.

Alabama has passed some laws allowing narrow exceptions for the use of CBD containing more than 0.3% THC. Carly’s Law allows for the University of Alabama at Birmingham (UAB) to conduct research for the use of CBD in treating patients with debilitating epileptic conditions. Specifically, this law requires the THC content to be no more than 3%,  a THC content level higher than the 0.3% limitation required for hemp. Carly’s Law provides for an affirmative and complete defense to the prosecution of a defendant who is arrested for possession or use of CBD so long as the person has a valid prescription from a UAB physician and has a debilitating epileptic condition or is a caretaker for someone who has a debilitating epileptic condition. Unfortunately, this law is set to expire on July 1, 2019.

Leni’s Law similarly allows for an affirmative and complete defense against prosecution for unlawful possession of CBD so long as the person has a debilitating medical condition or is the parent or guardian of a minor who has a debilitating medical condition. Just like Carly’s Law, Leni’s law requires the THC content to be less than 3%. Leni’s Law, however, has caused some confusion because it is not exactly clear whether the debilitating medical condition must include seizures as a symptom or if it may be interpreted more broadly.

In hopes of clarifying the confusion surrounding Leni’s Law and to extend the expiration date for Carly’s Law, the Alabama Legislature is set to vote on HB 243, which will modify and extend Carly’s Law until January 1, 2021, make substantive changes to Leni’s Law and set it for repeal on November 1, 2020, and create the Alabama CARE Act, discussed in more detail below.

Medical Cannabis in Alabama

There has been much discussion in the news over the past few years about medical marijuana and there are many proponents for allowing for some exceptions when it comes to using marijuana for medical purposes. CBD and THC contained in cannabis have been known to have medicinal qualities which help in the treatment of pain, seizures, and anxiety. Currently in Alabama, Carly’s Law and Leni’s Law provide the only two extremely narrow legal exceptions to using cannabis products with a THC content higher than 0.3%.

However, on May 9, 2019, the Alabama Senate passed the Alabama CARE Act, which will allow medical cannabis in the state of Alabama if passed by the House and signed into law.  The CARE Act sets up a Medical Cannabis Commission, which will have primary regulatory authority over medical grade cannabis, which could contain more than 0.3% THC, prescribed for certain qualifying conditions in Alabama.  Under the CARE Act, the Alabama Medical Cannabis Commission would have authority to, among other things: approve health care providers to issue prescriptions for medical cannabis; issue medical cannabis cards to qualifying patients; issue licenses for the cultivation, processing, transportation, manufacturing, packaging, and dispensing and selling of medical cannabis; inspect licensed facilities; and develop a secure seed-to-sale tracking system for all medical cannabis.  Currently, the CARE Act only applies and allows medical cannabis grown within the state of Alabama.      

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Understanding the various laws and regulations governing the growing, processing, and sale of cannabis can be a daunting task, and a detailed knowledge of the current and proposed laws is critical.  Our attorneys are here to assist our clients navigating this new industry in Alabama so that they can make informed business decisions and stay in compliance with the law.

Jane L. Calamusa

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