Delta-8, CBD, and the Georgia Hemp Farming Act
With the growing popularity of Delta-8 and CBD, Governor Kemp signed the “Hemp Farming Act” into law in May 2019. This legislation legalized hemp shortly after the federal government removed hemp from being classified as a controlled substance with the passage of the 2018 Farm Bill. Since the bill went into effect, the prosecution of Delta-8 products should have stopped, but there are many counties in Georgia that still continue to drag citizens through the criminal justice system by arresting store owners that are selling hemp products, even though the Georgia and the federal government legalized hemp products. The more aggressive county is Gwinnett.
WHAT’S THE DIFFERENCE?
While hemp and marijuana both come from the same species of plant (cannabis sativa), there are major ways in which they differ. The biggest difference is the amount of tetrahydrocannabinol (THC) found in both. Delta-9 THC is the psychoactive component that gives one the “high” feeling. The federal 2018 Farm Bill defines Hemp as any cannabis plant, or derivative thereof, that has no more than 0.3 percent of Delta-9 THC; therefore, marijuana is any cannabis plant that has a Delta-9 THC level greater than 0.3 percent. Thus, the main difference between legal hemp and illegal marijuana is the amount of THC in the substance. In fact, the leading authority, the Drug Enforcement Agency, in a letter to the Alabama Pharmacy Board, stated that cannabinoids extracted from the cannabis plant that have a Delta-9 THC concentration of not more than 0.3 percent meet the definition of hemp are not a controlled substance under the federal Controlled Substances Act.
In 2019, Georgia’s Hemp Farming Act adopted the federal standard. Georgia statute, § 2-23-3, hemp is defined as “the Cannabis sativa L. plant and any part of such plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with the federally defined THC level for hemp or a lower level.” (Emphasis added). As mentioned above, the federally defined THC level for hemp is defined as “a delta-9-THC concentration of not more than 0.3 percent on a dry weight basis, or as defined in 7 U.S.C. Section 16390, whichever is greater.” The Georgia Legislature specifically excluded hemp from being classified, categorized, or prosecuted as marijuana. Further, they allowed the distribution and possession of hemp products as long as the product meets the federal standard for the Delta-9 THC concentration limit.
DELTA-8 AND DELTA-10?
Delta-8 and Delta-10 products are cannabinoids derived from hemp. Therefore, under the federal Farm Bill, the Georgia Farming Act, and the Georgia statutes, these products are legal for distribution and sale. With Delta-8 and Delta-10 products becoming increasingly popular and found in your local gas station on the corner, many states have accepted the legality of these cannabinoids that come from hemp. On the other hand, there are a few states that have explicitly prohibited Delta-8 by adding statutes making it a crime to possess Delta-8. Without Georgia doing the same, the hemp cannabinoids are legal.
PROSECUTION OF LEGAL PRODUCTS
After the passage of the Georgia Farm Bill, many state courts which handle misdemeanor cases decided not to prosecute misdemeanor marijuana cases. The problem that courts are having is not being able to determine the amount of Delta-9 THC in order to conclude if the substance is legal hemp or illegal marijuana. One of the leading counties on this front is Gwinnett County. Solicitor Brian Whiteside announced that Gwinnett County would no longer prosecute marijuana cases that happened after May 10, 2019. In fact, Gwinnett’s Solicitor’s Office has already dismissed over one hundred cases.
However, the Gwinnett District Attorney, Patsy Austin-Gatson, has recently made it very clear that her office still intends on arresting and prosecuting anyone that possesses or distributes Delta-8 THC. In fact, many have already been arrested based on Madam District Attorney’s lack of knowledge—or that of her staff. Even a cursory search on the internet would disclose the fact that hemp and its derivatives (Delta-8) are not illegal under federal law or in Georgia. But the fact remains that Gwinnett County District Attorney’s Office is ruining lives and causing financial harm to individuals and businesses because of their lack of understanding.
At the beginning of this year, Madison County also attempted to claim that Delta-8 products were illegal THC substances. Arora Law challenged the District Attorney for that jurisdiction and won. The Judge granted our motion and said that Delta-8 is not illegal.
Now, we will challenge the Gwinnett County District Attorney.
