MS 2024-09-L-Yancey-September-9-2024-Hemp-Beverages September 9, 2024

Are hemp beverages legal to sell in Mississippi, and do they have to be under 0.3% THC?

Short answer: Hemp beverages sit in a legal gray zone. Section 97-31-5 makes it unlawful to sell any drug, elixir, or compound that produces intoxication when drunk to excess unless state law specifically legalizes it; no Mississippi statute specifically legalizes hemp beverages. Above 0.3% THC, the drink is a marijuana beverage and illegal outside the Medical Cannabis Act.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

Plain-English summary

Representative Lee Yancey asked the AG two practical questions about the wave of THC-infused hemp beverages reaching Mississippi store shelves. Are they legal? And do they have to stay under the 0.3% THC threshold?

The AG's answer is layered. Mississippi's Hemp Cultivation Act regulates the licensing and growing of hemp, but it is a cultivation statute, not a sale-of-finished-products statute. No Mississippi law specifically legalizes the sale of hemp beverages.

Mississippi has a separate, older statute, Section 97-31-5, that makes it unlawful to sell "any 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." There is a small carve-out for medicinal, household, cooking, and disease-treatment uses, but a recreational hemp beverage does not fit that carve-out. So if a hemp beverage actually produces intoxication when drunk to excess (which is a question of fact, not a question the AG resolves), the sale is unlawful.

Above 0.3% THC the analysis simplifies. The product is no longer "hemp" under Mississippi's definition; it is a marijuana product. Marijuana beverages are illegal under state law unless they are sold through licensed dispensaries under the Mississippi Medical Cannabis Act.

What this means for you

For Mississippi retailers and distributors carrying hemp beverages

Carrying these products is risky under current state law. The product label needs to confirm THC concentration of 0.3% or less by dry weight, otherwise it is a marijuana beverage and illegal outside the Medical Cannabis Act. Even at or below 0.3%, if the beverage is formulated to produce intoxication when drunk to excess, Section 97-31-5 makes the sale unlawful. The factual question (does this product intoxicate when drunk to excess) is exactly the question a prosecutor or regulator could test, and the AG opinion goes out of its way not to answer it. A practical position: if the marketing for a product leans on intoxicating effects, treat the legal risk as real and material; if it does not, document the formulation and labeling.

For the hemp industry

The opinion does not say hemp beverages are flatly banned, but it gives prosecutors and regulators a clean route to enforcement under Section 97-31-5 if they choose to use it. The longer-term answer for the industry in Mississippi is legislative. As long as no state law specifically authorizes the sale of hemp beverages, every product on a Mississippi shelf is exposed to the Section 97-31-5 framework if it intoxicates when drunk to excess.

For consumers

If you are buying a hemp beverage in Mississippi, the product's legality turns on facts the label may not tell you cleanly. Confirm THC concentration is 0.3% or less by dry weight; above that line, the product is a marijuana product and is not legal to sell outside an MMCA dispensary. If the product is marketed for an intoxicating effect, the seller may be running afoul of Section 97-31-5 even if the THC number is in range.

For law enforcement and prosecutors

Section 97-31-5 is the operative tool. The factual element you have to prove is that the beverage, in the form sold, produces intoxication when drunk to excess. The AG opinion expressly declines to make that factual call and notes it is outside the scope of an AG opinion. Standardized testing of the product, plus expert testimony on intoxicating effects at typical consumed volumes, would be the evidentiary path.

Common questions

Is selling a hemp beverage in Mississippi legal?

There is no Mississippi statute that specifically authorizes the sale of hemp beverages. There is a Mississippi statute (Section 97-31-5) that makes it unlawful to sell intoxicating compounds unless state law specifically legalizes them. If a hemp beverage produces intoxication when drunk to excess, the sale is unlawful under Section 97-31-5; if it does not, Section 97-31-5 doesn't apply.

What is the 0.3% THC threshold?

Mississippi's definition of "hemp," in Section 69-25-203(g), is the cannabis plant or its derivatives with a delta-9 THC concentration of not more than 0.3% on a dry weight basis. Above 0.3%, the product is not "hemp" under Mississippi law; it is "marijuana" under Section 41-29-105(r).

What if the product is over 0.3% THC?

Then it is a marijuana product, illegal under state law, and unless it is sold through a licensed dispensary under the Mississippi Medical Cannabis Act with all the corresponding patient and product requirements, the sale violates Mississippi's controlled-substances laws (Section 41-29-139(a)).

Doesn't the Mississippi Medical Cannabis Act allow medical cannabis beverages?

Yes, but only inside the MMCA framework. The MMCA (Sections 41-137-1, et seq.) covers edibles and beverages and explicitly contemplates them, but only "[s]ubject to the conditions, limitations, and requirements and exceptions" set out in that chapter. That means licensed cultivators, processors, dispensaries, qualifying patients, and so on. A general retail beverage, sold over the counter in any store, is not what the MMCA authorizes.

Why doesn't the AG just decide whether hemp beverages intoxicate when drunk to excess?

Because under Section 7-5-25, the AG opines on questions of state law and does not make factual determinations. The intoxication question is a factual one, product by product, dose by dose. A regulator, a prosecutor, or a court would be the right body to resolve that, with appropriate expert testimony.

What is the Section 97-31-5 carve-out?

Section 97-31-5 carves out items "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." A recreational hemp beverage does not fit any of those categories.

Background and statutory framework

Hemp Cultivation Act, Sections 69-25-201 et seq. Mississippi's hemp framework regulates licensed hemp cultivation and processing. Section 69-25-203(g) defines "hemp" as cannabis with no more than 0.3% delta-9 THC by dry weight. Hemp regulated under the Act is excluded from the Uniform Controlled Substances Law per Section 41-29-113(d)(31), as are certain industrial cannabis products and FDA-approved cannabis-derived ingestibles.

Section 97-31-5, intoxicating compounds. It is unlawful to sell, barter, or give away "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," subject to a medicinal/household/cooking/disease-treatment carve-out.

Marijuana definition, Section 41-29-105(r). "Marijuana" includes "all parts of the plant of the genus Cannabis and all species thereof, whether growing or not, the seeds thereof, and every compound, manufacture, salt, derivative, mixture or preparation of the plant or its seeds, excluding hashish[,]" and "does not include 'hemp' as defined in and regulated by [the Hemp Cultivation Act]." So marijuana and hemp are distinguished by THC concentration.

Mississippi Medical Cannabis Act, Sections 41-137-1, et seq. Allows licensed sale of medical cannabis products including edibles and beverages, with statutory conditions, limits, and requirements. Section 41-29-139(a) makes general distribution of marijuana illegal outside the MMCA.

Section 7-5-25. Limits AG opinions to questions of state law and prevents the AG from making factual determinations.

Citations

Miss. Code Ann. § 97-31-5
Miss. Code Ann. § 69-25-203(g)
Miss. Code Ann. § 41-29-105(r)
Miss. Code Ann. § 41-29-113(d)(31)
Miss. Code Ann. § 41-29-139(a)
Miss. Code Ann. § 41-137-9(h)–(j)
Miss. Code Ann. § 7-5-25

Source

Original opinion text

September 9, 2024

The Honorable Lee Yancey
Mississippi House of Representatives
192 Dogwood Place
Flowood, Mississippi 39232
Re:

Hemp Beverages

Dear Representative Yancey:
The Office of the Attorney General has received your request for an official opinion.
Questions Presented
1. Is it legal to sell hemp beverages in Mississippi?
2. If so, do the beverages have to contain less than 0.3% THC?
Brief Response
1. 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.
2. 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.
Applicable Law and Discussion
Mississippi Code Annotated Sections 69-25-201, et seq., are known as the Mississippi Hemp
Cultivation Act (the "Act") and regulate the licensing of growers and the cultivation and
processing of hemp in Mississippi. The Act defines "hemp" as:
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].
Miss. Code Ann. § 69-25-203(g) (emphasis added).
Notably, neither the Act nor any other state law specifically addresses the sale of hemp beverages.
Hemp regulated under the Act is excluded from the Uniform Controlled Substances Law, as well
as certain industrial cannabis products and "[p]ersonal care products that contain oil from sterilized
cannabis seeds, such as shampoos, soaps, and body lotions (if the products do not cause THC to
enter the human body)" and "[a]ny product derived from the hemp plant designed for human
ingestion and/or consumption that is approved by the United States Food and Drug
Administration[.]" Miss. Code Ann. § 41-29-113(d)(31).
However, without specific legal authority, drugs, compounds, or preparations are unlawful in
Mississippi if intoxicating when consumed in excess. Section 97-31-5 provides:
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.
(emphasis added). Whether a hemp beverage when consumed in excess would produce
intoxication is a determination of fact that is outside the scope of this opinion. Miss. Code Ann. §
7-5-25 (stating that this office may opine only on questions of state law). However, if the factual
determination is made that hemp beverages "when drunk to excess, in the form sold, will produce
intoxication," the sale of the same would be unlawful in Mississippi pursuant to Section 97-31-5
because no other state law legalizes such sales. Additionally, 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.
See supra notes 1-2 and Miss. Code Ann. § 41-29-139(a).
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By:

/s/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General

Marijuana is defined as "all parts of the plant of the genus Cannabis and all species thereof, whether growing or not,
the seeds thereof, and every compound, manufacture, salt, derivative, mixture or preparation of the plant or its seeds,
excluding hashish[,]" and "does not include 'hemp' as defined in and regulated by [the Act]." Miss. Code Ann. § 41-29-105(r). Hemp is distinguished from marijuana through its "delta-9-tetrahydrocannabinol (THC) concentration of
not more than three-tenths percent (0.3%) on a dry weight basis." Miss. Code Ann. § 69-25-203(g).

The Mississippi Medical Cannabis Act, Sections 41-137-1, et seq., allows the sale of medical cannabis products,
including edible cannabis products and beverages, "[s]ubject to the conditions, limitations, and requirements and
exceptions set forth in [that] chapter." See Miss. Code Ann. § 41-137-9(h)-(j) (emphasis added).

This office is unable to interpret or opine on any federal law or regulation. Miss. Code Ann. § 7-5-25.