I guess if you do this job long enough, you’ll see just about everything. This time, it’s the attorney general of Mississippi wading into the legality of beverages containing hemp. And it’s a doozy.
The late, very great artist (and I stress the word artist) Merle Haggard used to sing “I Think I’ll Just Stay Here and Drink.” If the attorney general of Mississippi has her way, during these trying times that call for a stiff drink, those drinks won’t contain hemp, threatening to bring to an end one of the fastest growing marketplaces in the state.
When you discuss cannabis issues, it’s impossible not to discuss politics. But Budding Trends is not a place for partisanship, and this is no exception. There very well may be good policy reasons for a law that prohibits hemp-infused beverages. The point of this post is to explore the legal issues surrounding the attorney general’s bewildering opinion and to use it as a catalyst to underscore the marijuana vs. hemp rift that has enveloped the country the last couple of years.
What Does the Opinion Say?
The opinion was a response to two questions from Mississippi House Rep. Lee Yancey:
- Is it legal to sell hemp beverages in Mississippi?
- If so, do the beverages have to contain less than 0.3% THC?
In brief, the attorney general responded:
- Mississippi Code Annotated Section 97-31-5 states that it is unlawful, unless otherwise legalized under state law, to sell any drug, elixir, or compound that “when drunk to excess, in the form sold, will produce intoxication.” Accordingly, because there is no state law that specifically legalizes hemp beverages, should a factual determination be made that hemp beverages would produce intoxication if drunk to excess, then the sale of the same would be unlawful.
- Beverages containing a THC concentration of greater than 0.3% would be classified as marijuana beverages. Such beverages are illegal under state law unless purchased in accordance with the Mississippi Medical Cannabis Act.
What Is the Attorney General’s Rationale?
At its core, the opinion is relatively straightforward. It begins by defining “hemp” under 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].
It then states that “neither the [the Hemp Cultivation Act] nor any other state law specifically addresses the sale of hemp beverages.”
Then, in what can generously be described as a pivot to a dated statute, the opinion states that that hemp is “unlawful in Mississippi if intoxicating when consumed in excess.” Specifically, the opinion references the following statute:
It shall be unlawful for any person, firm, corporation or association, to sell, barter, or give away, or keep for such purposes any sweet spirits of nitre, liquid ginger preparation, elixir of orange peel, pear extract, or any like drug, compound, bitters, elixir or preparation of any kind whatsoever, except where otherwise legalized under the laws of this state, which when drunk to excess, in the form sold, will produce intoxication, except when the same is kept, sold, bartered or given away for either medicinal, or household purposes, or for uses in cooking, baking, and purposes incidental to the treatment of disease.
Miss. Code Ann. § 97-31-5.
The opinion does note that “[w]hether a hemp beverage when consumed in excess would produce intoxication is a determination of fact that is outside the scope of this opinion.” Thus, “if a factual determination is made that a hemp beverage has a THC concentration of greater than 0.3%, then the beverage would be classified as a marijuana beverage; marijuana beverages are illegal under state law unless purchased in accordance with the Mississippi Medical Cannabis Act through a licensed dispensary.”
This last part is critical because it means that the opinion does not by its own terms ban any particular hemp beverage(s).
Potential Flaws in the Attorney General’s Opinion
Where to start? Again, this is not a political statement about what the law in Mississippi should be when it comes to beverages containing hemp. If Mississippians, through their duly elected representatives, wish to prohibit beverages containing hemp or to expressly allow them, they can pass a law just like other states have done. But this is neither the forum nor the manner to go about it.
The Law Relied Upon by the Opinion Does Not Govern the Sale of Hemp Beverages
Initially, let’s set aside the high-minded legal arguments we discuss below about preemption and vagueness for a moment and just read the statute upon which the attorney general purports to criminalize novel cannabinoids.
The opinion on its face says Mississippi law controls the growing, processing, and cultivation – but notably not the sale – of hemp beverages. Specifically, the opinion acknowledges that “[n]otably, neither the [Mississippi Medical Cannabis Act] nor any other state law specifically addresses the sale of hemp beverages.” That alone is telling. The attorney general even acknowledges that certain products containing hemp can be used by Mississippians.
But in order to get to banning hemp beverages, the attorney general has to find some hook, some pivot to a law that does so. The mental gymnastics employed here would make Simone Biles blush.
Specifically, the opinion that without specific legal authority (emphasis supplied), Section 97-31-5 governs:
It shall be unlawful for any person, firm, corporation or association, to sell, barter, or give away, or keep for such purposes any sweet spirits of nitre, liquid ginger preparation, elixir of orange peel, pear extract, or any like drug, compound, bitters, elixir or preparation of any kind whatsoever, except where otherwise legalized under the laws of this state, which when drunk to excess, in the form sold, will produce intoxication, except when the same is kept, sold, bartered or given away for either medicinal, or household purposes, or for uses in cooking, baking, and purposes incidental to the treatment of disease.
Section 97-31-5
The opinion only gets to Section 97-31-5 if there is not “specific legal authority” governing the matter. As discussed immediately above in the preemption section, there is specific legal authority governing the matter – the 2018 Farm Bill. Because there is legal authority that overrides any contrary or absent state authority, the remainder of the statute is inapplicable.
Second, the statute only prohibits products that are “like” an enumerated list of old-fashioned “intoxicants”: “any sweet spirits of nitre, liquid ginger preparation, elixir of orange peel, pear extract.” For the first time in Budding Trends history, we’re going to play a game of trivia: Which one doesn’t sound like the other?
- Sweet spirits of nitre
- Liquid ginger preparation
- Elixir of orange peel
- Pear extract
- Tetrahydrocannabinol with less than 0.3% Delta-9 on a dry weight basis
There is a basic rule of statutory interpretation that when there is a list of items followed by the word “like” that the inclusive terms are only those that are, in fact, “like” the enumerated terms. It would be difficult to say with a straight face that moonshine made with pear extracts or orange peels are “like” seltzers containing novel cannabinoids that were not even known to scientists when the law was passed. This appears little more than an effort to shoehorn this new type of product into an old statute that was designed to curtail an entirely unlike group of potential intoxicants.
Does Federal Law Preempt the Attorney General’s Opinion of Mississippi Law?
Hemp companies that have challenged state laws limiting or forbidding the sale, possession, or production of certain hemp products almost always argue that the Farm Bill preempts the challenged state law. Courts have reached varying opinions on this issue, and the particular facts and language used in the challenged law will dictate the result.
For example, the United States District Court for the District of Wyoming ruled in July that the Farm Bill did not preempt a Wyoming law because the plaintiffs did not assert any substantive private right under the Farm Bill or any other federal law. A South Dakota federal court ruled similarly in June:
Since the 2018 Farm Bill specifically disavows preemption, says nothing about whether a state may prohibit the sale of industrial hemp, and in fact allows states to be ‘more stringent’ in regulating hemp production, plaintiff is unlikely to succeed on its preemption argument.
A Virginia federal court likewise concluded that the hemp companies’ preemption arguments lacked merit, stating that the Farm Bill allows states to retain “primary regulatory authority over the production of hemp” and only expressly preempts state restrictions on “interstate transportation and shipment [of] industrial hemp through the Commonwealth.”
On the other side, an Arkansas federal court reached a different conclusion in 2023. In that decision, the court held:
The 2018 Farm Bill’s definition of hemp covers all downstream products if they do not cross the 0.3 percent delta-9 THC threshold… Under the 2018 Farm Bill, Arkansas can regulate hemp production and even ban it outright if it is so inclined. The legislature seems to have tried to keep the parts of the program it likes (purely industrial uses) and eliminate the parts it doesn’t (human consumption). That may very well be an acceptable distinction as it applies to the state’s criminal code, but changing definitions in a federal program, which it has already fully joined, is not a constitutionally valid way to do it.
Whether the Farm Bill preempts Section 97-31-5 is an issue to be analyzed in a different forum. Notably, however, the Mississippi attorney general admits that her opinion did not even consider federal law governing hemp: “[T]his office is unable to interpret or opine on any federal law or regulation.”
Is the Law Void for Vagueness?
A criminal statute cannot be used to prosecute if the language of the statute is too vague to be understood by persons of ordinary intelligence. Like the preemption issue, federal courts addressing this argument have reached different conclusions. And, like the preemption issue, those decisions are based on the particular language of the state law at issue. The recent Arkansas decision concluded the Arkansas law at issue was impermissibly vague:
The Due Process Clause dooms certain laws that are too vague. A law crosses that threshold when it “either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. [The Act] contains terms that would confuse even an exceptionally intelligent reader. Specifically, [“psychoactive substances”] is vague, and are not defined in the statute.
…
These terms are paired with, at best, fuzzy standards — and record no explicit statutory definition – making it next to impossible for the typical person to know what to do. If the person guesses wrong, the consequences are potential criminal punishment.”
The Wyoming and South Dakota courts, however, rejected vagueness arguments. The Wyoming court concluded:
While SEA 24 is not perfect. It is not unconstitutionally vague. SEA 24 sufficiently defines the conduct it prohibits. A person cannot add psychoactive substances to hemp products, nor can he or she make products containing more than 0.3% delta-8 or THC… Any uncertainties in the statute do not rise to the level of vagueness required to find it unconstitutional.
And the South Dakota court opined:
Reading Section 3(7) ofHB 1125 in harmony with the entire new statutory scheme makes clear that South Dakota wanted to proscribe certain chemically modified hemp and marijuana chemical alternatives while still allowing for unaltered delta-9 hemp with a concentration of not more than 0.3% ofTHC. Based on this reading, “ordinary people have ‘fair notice’ of the conduct [HB 1125] proscribes.” Sessions, 584 U.S, at 155 (citations omitted). Further, South Dakota is explicitly permitted under the 2018 Farm Bill to be “more stringent” in its regulation of the production of hemp. 7 U.S.C. § 1639p(a)(3)(A). As such, Plaintiffs are unlikely to succeed on the merits of their vagueness attack.
This is the backdrop behind which a court would evaluate whether Section 97-31-5, if it does indeed forbid hemp-derived beverages, is unconstitutionally vague.
What Is the Takeaway?
I get it: Hemp is an ancient crop but a novel concept to many Americans. Many fear that hemp-derived products are no different from illicit drugs and understandably have questions about a new, largely unregulated product that is often marketed as having psychoactive effects.
Again, Mississippians can change the law if they wish, and, again, all signs point towards legislation addressing these issues being forthcoming. Rest assured, however, that any such law will likely face some level of legal scrutiny and its fate be judged under the doctrines discussed in this blog, along with others not discussed (e.g., Dormant Commerce Clause and Regulatory Taking).
We have written extensively about the ongoing battle between the marijuana industry and the hemp industry. My assumption is that this is yet another salvo in that battle and one that is likely to be taken up when the Mississippi Legislature returns to session next year.
Practically speaking, though, what will be the effect of the opinion? I know firsthand that manufacturers, distributors, and retailers in Mississippi have taken notice of the opinion. But will any of these entities have the will to litigate the matter? Will they risk the money and potential political blowback? Perhaps a trade association or collective of hemp operators could do so without the individual risk.
Speaking only for ourselves, it’s a shame they’ll have to make that decision facing the barrel of this opinion.
