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Fourth Circuit Ruling Contradicts DEA’s Opinion on the Legality of Certain Hemp-Derived Products

Richmond, VA: Judges with the Fourth Circuit Court of Appeals have ruled that all hemp-derived products, including those that undergo a chemical synthesis during manufacturing, are legal under federal law.

The decision is consistent with a 2022 Ninth Circuit ruling, but contradicts guidance provided more recently by the Drug Enforcement Administration. In a February 13, 2023 letter, the DEA argued that the 2018 Farm Bill never intended to legalize products “that do not occur in the cannabis plant and can only be obtained synthetically,” such as THC-O, regardless of their THC content.

In its ruling, judges acknowledged that the DEA and the Ninth Circuit disagreed on the matter. “The Ninth Circuit held that it didn’t need to consider the DEA’s position on synthetically derived substances because the definition of ‘hemp’ under the 2018 Farm Act was unambiguous in its application to all products derived from the cannabis plant, ‘so long as they do not cross the 0.3 percent delta-9 THC threshold,'” the Court determined. “Between the DEA’s February 2023 letter and [the Ninth Circuit decision], we think the Ninth Circuit’s interpretation of the 2018 Farm Act is the better of the two. And we’re free to make that determination ourselves, despite a contrary interpretation from the DEA, because we agree with the Ninth Circuit that § 1639o is unambiguous.”

The case before the Court centered on whether an employer could fire a worker for using hemp products. Ultimately, judges upheld the defendant’s termination because they failed to provide sufficient evidence that the products consumed possessed THC at limits below the threshold (0.3 percent) established by the Agriculture Improvement Act of 2018.

NORML and other groups have urged the FDA to establish regulatory guidelines governing the production, testing, labeling, and marketing of certain intoxicating hemp-derived products. In 2021, NORML issued a report on delta-8 THC and other novel, synthetically derived cannabinoids that cautioned consumers to avoid these unregulated products because they are untested and may contain impurities.

Survey: Patients With Rheumatic Conditions Frequently Substitute Cannabis for Prescription Medications

Montreal, Canada: Patients with neuropathy, fibromyalgia, osteoarthritis, and other rheumatic conditions frequently substitute cannabis in place of prescription medications, according to survey data published in the journal Open Neurology.

Researchers affiliated with McGill University in Montreal and the University of Michigan surveyed 763 US and Canadian patients with rheumatic conditions.

Consistent with other studies, 63 percent of respondents reported substituting cannabis products for other medications, including nonsteroidal anti-inflammatory drugs (55 percent), opioids (49 percent), sleep aids (30 percent), and muscle relaxants (25 percent). Following substitution, most participants reported decreases or cessation in their medication use. Respondents typically reported turning to cannabis because it offered “better symptom management” and was associated with “fewer adverse effects.”

Those who substituted medical cannabis in place of other medications reported greater improvements in pain, sleep, joint stiffness, muscle spasm, inflammation, and global health.

“The acceptance of MC [medical cannabis] as a treatment strategy for rheumatic conditions is evolving,” the study’s authors concluded. “These encouraging results of medication reduction and favorable effect of MC require confirmation with more rigorous methods. ... Comparative effective clinical trials of MC versus other pain treatments are needed, as are more prospective studies investigating the effects of MC on the use of medications and other substances in rheumatic populations.”

Full text of the study, “Substituting medical cannabis for medications among patients with rheumatic conditions in the United States and Canada,” appears in Open Neurology.

North Carolina: Cherokee Tribe Expands Retail Marijuana Sales to Those Ages 21 and Older

Qualla, NC: Members of the North Carolina Eastern Band of Cherokee Indians have begun selling cannabis products to patrons ages 21 and older, regardless of whether they are members of federal recognized Indian tribes.

Tribal members initially began selling marijuana products to authorized patients in April. In July, they began engaging in adult-use sales exclusively to other tribal members. On Saturday, they expanded sales to anyone over 21 years of age. That day, an estimated 4,000 customers were on hand to purchase cannabis products.

According to data published in May in the trade journal Marijuana Business Daily, federally recognized tribes are currently operating cannabis businesses in nine states: California, Michigan, Minnesota, Nevada, New Mexico, New York, North Carolina, South Dakota, and Washington.

Neither the recreational use nor the medical use of cannabis is permitted in North Carolina. Senate lawmakers earlier this year advanced legislation to regulate medical cannabis access, but House leaders failed to take up the measure. Statewide polling shows that 78 percent of North Carolina voters support legalizing cannabis for eligible patients.

In response to the Cherokee tribe’s actions, Congressman Chuck Edwards (R-NC) introduced federal legislation (HR 5323) seeking to withhold federal funding from jurisdictions that permit marijuana sales. The bill is not anticipated to receive a hearing.

Tennessee: Supreme Court Rules Drug-Sniffing Dog Alerts Still Constitute Probable Cause for Certain Marijuana-Related Searches

Nashville, TN: Judges on the Tennessee Supreme Court have determined that an alert from a drug-sniffing dog justifies a broader search of a defendant’s automobile, despite acknowledging that dogs cannot distinguish between legal hemp products and marijuana.

In its ruling, the Court affirmed that an alert from a drug dog -- absent other evidence of suspicious activity -- is not probable cause for a search. Rather, judges determined that probable cause is “based on a totality of the circumstances, and a positive indication from a drug-sniffing dog is part of the total circumstances.”

A summary of the case posted on the Tennessee Courts website stated, “Even though Tennessee’s decision to legalize hemp made the dog alert less certain, probable cause does not demand absolute certainty and an alert from a drug-sniffing dog still shows a likelihood that illegal drugs are present.”

Tennessee legalized the possession and use of hemp products in 2019. Marijuana remains illegal in the state.

Judges in the case concluded: “We hold that a positive indication from a drug-sniffing canine may continue to contribute to a finding of probable cause when examining the totality of the circumstances, notwithstanding the legalization of hemp. … Sufficient facts existed for [law enforcement] to conclude that contraband or evidence of a crime was present inside the vehicle. … Accordingly, we affirm the judgment of the Court of Criminal Appeals reinstating the indictments against the defendant and remanding for further proceedings.”

A trial court had previously granted the defendant’s motion to suppress evidence obtained in the search. The Court of Criminal Appeals reversed that decision.

The case is Tennessee v. Green.

Courts in several other states where cannabis is legal for either medical or adult-use purposes – including Delaware, Maryland, Minnesota, Pennsylvania, and Vermont – have previously determined that the odor of marijuana emanating from a motor vehicle is not by itself sufficient grounds to justify a warrantless search.