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If you work in this field long enough, I’m sure you will see everything. This time it’s the Attorney General of Mississippi who is looking into the legality hemp-containing beverages. It’s a big one.

Merle Haggard, the late and very great artist (and let me emphasize artist), used to The following are some words to describe the situation: “I think I’ll just stay here and drink.” If the attorney-general of Mississippi has her say, during these trying moments that call for a stiff beverage, those drinks will not contain hemp. This threatens to bring an end to one of the fastest-growing markets in the state.

It’s impossible to avoid discussing politics when you talk about cannabis. But Budding Trends This is not the place for partisanship. There may be very good policy reasons to prohibit hemp-infused beverages. This post explores the legal issues surrounding the Attorney General’s bizarre opinion It is also a way to highlight the rift between marijuana and hemp that has engulfed the country in the past couple of years.

What does the opinion say?

The opinion was a reply to two questions posed by Mississippi House Rep. Lee Yancey.

1. Is it legal to buy hemp beverages in Mississippi?
2. Do the beverages need to contain less THC than 0.3%?

In a nutshell, the Attorney General responded:

1. Mississippi Code Annotated Section 97-31.5 states that it’s illegal to sell any drug or compound, unless legalized by state law. This includes hemp beverages. If it can be proven that hemp beverages will cause intoxication if consumed in excess, the sale would be illegal.
2. Beverages with a THC content greater than 0.3% are classified as marijuana drinks. These beverages are illegal in Mississippi unless they are purchased according to the Mississippi Medical Cannabis Act.

What is the Attorney General’s rationale?

The opinion is a straightforward one. It begins by defining the term “hemp” in accordance with the Mississippi Hemp Cultivation Act.

the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts and salts of isomers, whether growing or not, with a delta-9-tetrahydrocannabinol (THC) concentration of not more than three-tenths percent (0.3%) on a dry weight basis that is grown or processed under [the Hemp Cultivation Act].

Then it states “neither the [the Hemp Cultivation Act] “Neither the federal law nor any other state specifically addresses the sale or consumption of hemp beverages.”

The opinion then makes a pivot, referring to an outdated statute, stating that hemp is “illegal in Mississippi” if it is intoxicating if consumed in excess.

It is illegal for any person, firm or corporation to sell, barter or give away any sweet spirits of nitre or liquid ginger preparation or any other similar drug, compound or bitters of any kind, or to keep for such purposes any elixir, extract of orange peel or pear, or any other like preparation or drug of any type, except where the laws of the state otherwise allow it, that when drunk in excess in the form sold will cause intoxication.

Miss. Code Ann. Code Ann.

The opinion notes that “[w]The Mississippi Medical Cannabis Act prohibits the sale of marijuana beverages unless they are purchased through a licensed dispensary in accordance with state law.

This last part is crucial because it means the opinion does NOT by its own terms prohibit any hemp beverage(s).

The Attorney General’s Opinion: Potential flaws

Where to begin? This is not a political statement on what the Mississippi law says. You can also check out Be when it comes beverages containing hemp. Mississippians can pass a bill, just as other states, if they want to expressly permit or prohibit hemp-containing beverages. But this is not the place or the way to do it.

The law relied upon by the opinion does not govern the sale of hemp beverages

Let’s first set aside for a moment the high-minded arguments we discuss below regarding preemption and vagueness and simply read the statute on which the Attorney General purports criminalize novel cannabinoids.

The opinion states that Mississippi law controls the cultivation, processing and cultivation of hemp beverages, but not their sale. The opinion states that “[n]The otably neither the [Mississippi Medical Cannabis Act] This alone is telling. The Attorney General even acknowledges that Mississippians can use certain hemp products.

To get to the point of banning hemp drinks, the attorney general must find a hook, a pivot, to enact a law which does so. The mental gymnastics used here would make Simone Biles blush.

The opinion that Without specific legal authority (emphasis added) Section 97-31.5 governs:

It is illegal for any person, firm or corporation to sell, barter or give away any sweet spirits of nitre or liquid ginger preparation or any other similar drug, compound or bitters of any kind, except where the laws of this State otherwise allow it, or to keep for such purposes any pear extract or elixir, or any other like drug, compound or preparation of any type whatsoever, which, when drunk in excess, in the form that they are sold, will cause intoxication.

Section 97-31.5

The opinion will only reach Section 97-31.5 if “specific legal authority” is not in place. As was discussed in the section on preemption, there is a specific legal authority that governs the matter. It’s the 2018 Farm Bill. The rest of the statute is not applicable because there is a legal authority that overrides state or federal authority.

Second, the statute only bans products that “resemble” a list of old-fashioned intoxicants: “any sweet spirits, liquid ginger preparations, elixirs of orange peel and pear extract.” Budding Trends We’re going to play trivia about history: Which one does not sound like the other.

1. Sweet spirits of nitre
2. Liquid ginger preparation
3. Elixir from orange peel
4. Pear extract
5. Tetrahydrocannabinol less than 0.3% Delta-9 based on dry weight

It is a rule of statutory construction that, when a list is followed by “like”, the inclusive terms are those that are “like” the items listed. It is difficult to say that moonshine containing pear extracts and orange peels are “like’ seltzers that contain novel cannabinoids, which were unknown to scientists at the time of the law. This is a simple attempt to fit a new product into a statute that was intended to limit alcoholic beverages of utterly different types.

Does Federal law preempt the Attorney General’s Opinion on Mississippi Law?

Hemp companies who have challenged state laws that limit or prohibit the sale, possession or production of certain hemp-based products almost always argue the Farm Bill preempts those state laws. The courts have reached different opinions on this matter, and the specific facts and language in the challenged state law will determine the outcome.

The United States District Court for the District of Wyoming, for example. ruled In July, the Farm Bill was not preempted by a Wyoming law as the plaintiffs had not asserted any substantive private rights under the Farm Bill or other federal laws. A South Dakota federal court ruled In June:

The 2018 Farm Bill explicitly disavows the preemption of a state, and says nothing about whether or not a state can prohibit the sale industrial hemp. In fact, it allows states to be “more stringent” in regulating hemp cultivation. Plaintiff is unlikely to win on its preemption claim.

A Virginia federal court likewise The hemp companies’ arguments about preemption were not valid, as the Farm Bill allows the states to retain the “primary regulatory authority” over hemp production and only preempts restrictions by the states on “interstate transport and shipment”. [of] “Industrial hemp through the Commonwealth”

In 2023, a federal court in Arkansas reached a different conclusion. In that case, the court Holdings:

The 2018 Farm Bill defines hemp as all downstream products that do not exceed the 0.3 percent delta-9 threshold… Arkansas can regulate hemp cultivation and even ban it outright under the 2018 Farm Bill if it so desires. The legislature appears to have kept the parts of the program that it likes (purely for industrial uses) while eliminating the parts it does not (human consumption). This may be a valid distinction for the state’s criminal law, but changing definitions within a federal program that it has already joined is not constitutionally valid.

It is a question that should be discussed in a separate forum. The Mississippi attorney general acknowledges, however, that her opinion didn’t even consider federal law governing the hemp industry:[T]His office is unable interpret or comment on any federal law or regulations.”

Is the law void for vagueness?

If the language of a criminal statute is too vague for people of ordinary intelligence to understand, it cannot be used as a basis for prosecution. Federal courts have reached different conclusions in addressing this argument, just as they did with the preemption issue. Like the preemption issue these decisions are based upon the specific language of the state laws at issue. The recent Arkansas decision concluded that the Arkansas law in question was impermissibly unclear:

The Due Process Clause is a death sentence for certain laws. The Due Process Clause is a law that crosses the threshold when it “either prohibits or requires an act that is so vague that men with common intelligence have to guess at its meaning, and differ on its application.” [The Act] Even the most intelligent reader would be confused by some of these terms. Specifically, [“psychoactive substances”] The statute is vague and does not define the terms.

…

The terms are vague at best and there is no explicit definition in the law. This makes it difficult for the average person to know what they mean. If the person guesses incorrectly, the consequences could be criminal punishment.”

However, the Wyoming and South Dakota courts rejected arguments about vagueness. The Wyoming court concluded that:

SEA 24 isn’t perfect. It is not unconstitutionally unclear. SEA 24 adequately defines the conduct that it prohibits. A person cannot add psychoactive substance to hemp products or make products that contain more than 0.3% THC or delta-8… Any uncertainty in the statute does not rise to the level required to find it unconstitutional.

The South Dakota court also opined that:

When HB 1125’s Section 3(7) is read in conjunction with the entire new legislative scheme, it becomes clear that South Dakota wished to prohibit certain chemically altered hemp and marijuana chemical substitutes while still allowing unaltered delta-9 with a concentration of no more than 0.3% of THC. According to this reading, “ordinary citizens have ‘fair notification’ of the conduct [HB 1125] Sessions, 584 U.S., at 155. (Citations omitted). South Dakota has been explicitly allowed to be “more strict” in its regulation regarding hemp production under the 2018 Farm Bill. 7 U.S.C. SS 1639p (a)(3) (A). As a result, Plaintiffs will not succeed in their vagueness argument.

This is the background against which a court will evaluate whether Section 97-31.5, if indeed it prohibits hemp-derived beverages is unconstitutionally unclear.

What is the Takeaway?

I get it. Hemp is a very old crop, but a new concept for many Americans. Many Americans fear that hemp-derived goods are no different than illicit drugs. They have legitimate questions about a relatively new product that is marketed to have psychoactive effects.

Mississippians have the right to change the law, and all signs point to legislation addressing this issue. You can rest assured that any law of this nature will be subject to some level legal scrutiny, and its fate will be judged according to the doctrines discussed on this blog as well as others not discussed (e.g. Dormant Commerce Clause, Regulatory Taking).

We have a number of different ways to get in touch with us. written The ongoing battle between the hemp and marijuana industries. My assumption is this is just another salvo in the ongoing battle between the marijuana industry and hemp industry.

What will the impact of the opinion be in practice? I can confirm that manufacturers, retailers, and distributors in Mississippi have been made aware of the opinion. Will any of these entities be willing to litigate this matter? Will they risk money and possible political backlash? Maybe a trade association of hemp operators or collective could do this without individual risk.

It’s a shame, if we speak only for ourselves that they will have to face this opinion when making a decision.