Are hemp-derived THC drinks legal to sell in South Carolina?

Official title

Opinion addressing whether the distribution, sale and possession of non-alcoholic beverages containing hemp-derived THC with concentrations of delta-9 THC not more than 0.3% are legal in South Carolina.

Requester

Requested by The Honorable G. Murrell Smith Jr., Speaker, South Carolina House of Representatives.

Plain-English summary

In September 2024 the South Carolina Attorney General's office answered a question from House Speaker Murrell Smith: are non-alcoholic drinks spiked with hemp-derived THC legal to sell in South Carolina, and are there any rules about selling them to minors?

The short statutory answer is yes. Congress took hemp out of the Controlled Substances Act with the 2018 Farm Bill, and South Carolina followed with the Hemp Farming Act of 2019. Under both, hemp and hemp products (including infused drinks) are legal as long as the delta-9 THC concentration is no more than 0.3% measured on a dry weight basis. Anything above that line is, by definition, marijuana and illegal.

The opinion then spends most of its length on the catch. The Attorney General refused to declare any whole category of THC beverages legal in the abstract. Whether a specific can actually meets the 0.3% threshold is a question of fact, and the office repeatedly stressed that facts are for law enforcement and the courts, not for an AG opinion. THC content cannot be judged by sight, smell, or a field test; it takes lab analysis. The office also flagged a recurring scientific wrinkle that several courts have noticed: a 0.3% dry-weight figure for raw plant matter does not necessarily mean a finished, denser beverage stays non-intoxicating, because the same percentage of a heavier product can carry a much larger absolute dose. The bottom line the office drew, borrowing from a South Carolina Supreme Court gaming-machine case, is that legality has to be determined "can-by-can," not en masse.

On the minors question, the opinion's answer is essentially that the law as written contains no guardrails beyond the 0.3% concentration limit. The office urged the General Assembly to revisit the Hemp Farming Act and consider age limits, labeling, safety, and which agency should regulate these products, the way some other states (Iowa is cited) have begun to do.

What this means for you

Retailers, distributors, and manufacturers of hemp drinks: The opinion treats a non-alcoholic beverage with delta-9 THC at or below 0.3% on a dry weight basis as legal under both federal and South Carolina law. But it also makes clear that selling a product "over the counter" is not itself proof the product is legal; the office quoted the Fourth Circuit's observation that such products "are notoriously difficult to regulate and often contain higher concentrations of THC than permitted by law (even if they advertise otherwise)." The opinion notes, without resolving it, that manufacturer certification of the 0.3%-or-less figure "may" satisfy the legality requirement.

Law enforcement and prosecutors: The opinion holds that legality is a case-by-case, lab-tested factual determination. Drawing on out-of-state criminal cases, it stresses that the State carries the burden of proving a seized substance actually exceeds 0.3% delta-9 THC; equivocal evidence or guesswork will not sustain a conviction.

Legislators: The office explicitly declined to fill the gap itself and pointed the question back to the General Assembly, saying current law has no "guardrails" beyond the 0.3% limit and listing the issues other states are addressing (sales to children, age limits, labeling, safety, enforcement authority).

Parents and the public: The opinion does not announce any current restriction on selling these products to minors. It records that, as the law stood in 2024, there were none specific to hemp-derived THC drinks beyond the concentration limit, and it described that gap as a reason for the Legislature to act.

Common questions

Are THC drinks flat-out legal in South Carolina?
A drink is legal under the statute if its delta-9 THC concentration is 0.3% or less on a dry weight basis. The Attorney General would not certify any whole product line as legal, because meeting that limit is a factual question that depends on lab testing of the specific product.

Does the 0.3% rule mean a drink can't get you intoxicated?
Not necessarily. The opinion repeats several courts' point that the 0.3% dry-weight standard was written with plant matter in mind. A denser product like a beverage can stay under 0.3% by weight while still carrying enough THC to be intoxicating.

Can a store be confident a product is legal just because it's on the shelf?
No. The opinion quotes the Fourth Circuit's view that selling something over the counter "is not itself evidence of [its] legality," and that these products often contain more THC than they advertise.

Did the opinion set an age limit for buying hemp THC drinks?
No. It found that current South Carolina law has no such restriction beyond the 0.3% concentration limit, and it urged the General Assembly to consider adding age limits, labeling, and other safeguards.

Background and statutory framework

The opinion walks through how hemp went from criminalized to deregulated. Hemp was swept into federal prohibition through the 1937 Marihuana Tax Act and then the Controlled Substances Act of 1970, which defined "marijuana" broadly (21 U.S.C. § 802(16)). The 2014 Farm Bill cracked the door open for university and state-agriculture-department pilot programs, and a 2014 South Carolina opinion had concluded the State's early hemp law was largely preempted by federal law.

The 2018 Farm Bill changed the federal picture by removing hemp from the Controlled Substances Act and defining it by its delta-9 THC concentration. South Carolina responded with the Hemp Farming Act of 2019 (Act 14 of 2019). Its centerpiece, § 46-55-20(A)(1), makes it unlawful to cultivate, handle, or process hemp without a license, while § 46-55-10 defines "hemp" and "hemp products" by the "federally defined THC level for hemp," a delta-9 concentration of not more than 0.3% on a dry weight basis. Section 46-55-30 carves hemp products and extracts (including CBD) out of the chapter's licensing scheme, while warning that nothing in it authorizes violating any other state or federal law.

The office leaned on a string of recent decisions for the proposition that the line between legal hemp and illegal marijuana is purely the delta-9 concentration and must be proven by testing, including the Fourth Circuit's decision in Anderson v. Diamondback Investment Group and the federal district court's discussion in Climbing Kites LLC v. Iowa. For the "no blanket determination" point it invoked the South Carolina Supreme Court's gaming-machine forfeiture decision in Allendale County Sheriff's Office v. Two Chess Challenge I, which required a machine-by-machine analysis rather than a categorical ruling.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-whether-the-distribution-sale-and-possession-of-non-alcoholic-beverages-containing-hemp-derived-thc-with-concentrations-of-delta-9-thc-not-more-than-0-3-are-legal-in-south-carolina/
• Original PDF: https://www.scag.gov/media/qu3frxqy/smithm-os-10958-final-opinion-9-16-2024-pdf.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ALAN WILSON
ATTORNEY GENERAL

September 16, 2024

The Honorable G. Murrell Smith, Jr.
Speaker of the House

South Carolina House of Representatives
P.O. Box 11867

Columbia, SC 29211

Dear Mr. Speaker:

You seek our opinion as to “whether distribution, sale and marketing of non-alcoholic
beverages containing hemp-derived Tetrahydrocannabinol (“THC”) with concentrations of delta-
9 THC [of] not more than 0.3% are legal in South Carolina.” By way of background, you
provide the following information, as stated in your letter:

I am writing this letter to request an opinion as to whether the distribution, sale, and
possession of non-alcoholic beverages containing hemp-derived
Tetrahydrocannabinol ("THC") with concentrations of delta-9 THC not more than
0.3% are legal in South Carolina. If the answer to this question is yes, do any
restrictions currently exist regarding the sale and marketing of these products to
minors?

As you are aware, recent changes in federal and state law dramatically changed the
treatment of industrial hemp through the United States, including South Carolina.
Specifically, Congress removed "hemp" from the Controlled Substances Act based
on the concentration level of delta-9 THC. See 21. U.S.C. 802(16).

Recently, South Carolina distributors have been requested to provide hemp-infused
beverages to various retailers in South Carolina. There are a variety of companies in
the United States that currently manufacture hemp-infused beverages. I understand
these beverages do not contain alcohol.

No statute, regulation, agency guidance or prior Attorney General Opinion I provides
a clear answer as to whether these hemp-infused beverages that are manufactured,
distributed, or sold in South Carolina are legal. In fact, the Attorney General's July
10, 2019 Opinion confirmed possession or sale of material containing delta-9 THC
concentration of more than 0.3 person using post-decarboxylation or similarly
reliable methods would likely be deemed to constitute marijuana", but it did not

The Honorable G. Murrell Smith, Jr.
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September 16, 2024

explicitly state whether possession or sale of products containing hemp-derived THC
with concentrations of delta-9 THC not more than 0. 3% are legal in South Carolina.

Manufacturers and distributors in South Carolina need clear guidance on whether
hemp-infused products manufactured, distributed, possessed or sold are legal in
South Carolina. Thus, I respectfully request an opinion from the Attorney General on
whether the distribution, sale, and possession of non-alcoholic beverages containing
hemp-derived THC with concentrations of delta- 9 THC of not more than 0.3% are
legal in South Carolina. Further, if these products are legal in South Carolina, I
respectfully request an answer to whether any restrictions currently exist regarding
the sale and marketing of these products to minors.

In summary, we conclude that both federal and state law legalize hemp or hemp products
(such as hemp-infused drinks) as long as the hemp or hemp product does not contain a delta-9
THC concentration of more than 0.3% on a dry weight basis. Any drink which meets this
requirement is legal. This legalization of hemp is the result of passage by Congress in 2018 of
the Farm Bill and the enactment by the General Assembly in 2019 of the Hemp Farming Act. In
each of these pieces of legislation, hemp and hemp products were removed from the
classification of a controlled substance and made legal if they meet the foregoing standard of
concentration.

Thus, in the abstract, that is the answer to your question. However, for the reasons which
follow, the legality of a particular THC-infused drink must be determined individually. In other
words, we are unable to give a “blanket” assessment of the legality of a category of THC-infused
beverages any more than we could, in a given instance, assess whether marijuana or some other
substance is being possessed. See Lakes v. State, 224 N.E.2d 373, 374-75 (Ind. Ct. App. 2024)
[the state must present evidence of the THC concentration to determine whether the alleged
substance being possessed is marijuana]. As one court has noted, THC content cannot be
determined by sight or smell or field testing, but only by lab analysis. See Gautier v. Los
Angeles Police Dept., 2022 WL 19829441, at * 2 (C.D. Cal. 2022) [“. . . lab testing is required to
determine the percentage of delta-9 THC present in any submitted sample.”]. Thus, lacing the
ability to find facts, the limits of our legal analysis herein are simply to conclude that if a THC-
infused beverage meets the delta-9 THC level of 0.3% or less on a dry weight basis, it is legal
under federal and state law.

Accordingly, as discussed below, the General Assembly may wish to revisit — as other
states are doing — the Hemp Farming Act of 2019 in order to address the various issues
surrounding the regulation of hemp-infused drinks and food products.

Law/Analysis
We first provide a brief history of industrial hemp under federal and state law as set forth

in our previous opinions. In Op. S.C. Att’y Gen., 2019 WL 3243864 (July 10, 2019), we
summarized this history as follows:

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September 16, 2024

[d]espite its industrial uses and value as an agricultural crop, hemp was ultimately
criminalized under federal and state law. The origins of its criminalization under
federal law is found in the "Marihuana Tax Act of 1937," which "was to treat
industrial-use and drug-use marijuana differently by taxing them at different rates, or
not at all." United States v. White Plume, 447 F.3d 1067, 1071 (8th Cir. 2006).
When the Controlled Substances Act was enacted by Congress in 1970, the Tax Act
was repealed in favor of criminalizing the growing of marijuana. Id. at 1072.
However, the Tax Act's definition of marijuana was adopted verbatim criminalizing
“the growing of marijuana whether it was intended for industrial-use or drug-use."
Id. That same definition is contained in the current version of the Controlled
Substances Act.

Under the Controlled Substances Act, marijuana is defined as follows:

The term [marijuana] means all parts of the plant Cannabis Sativa L.,
whether growing or not; the seeds thereof; the resin extracted from any part
of such plant; and every compound, manufacture, salt, derivative, mixture, or
preparation of such plant, its seeds or resin. Such term does not include the
mature stalks of such plant, fiber produced from such stalks, oil or cake made
from the seeds of such plant, any other compound, manufacture, salt,
derivative, mixture, or preparation of such mature stalks (except the resin
extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant
which is incapable of germination.

21 U.S.C. § 802(16).

Along the same lines, as the Court recognized in Lundy [v. Commonwealth, 511
S.W.3d 398, 404 (Ky. 2017)], in Op. S.C. Att'y Gen., 2014 WL 7505274 (June 6,
2014), we addressed the status of industrial hemp in South Carolina in an opinion
rendered prior to the passage of the federal Farm Act of 2018, which we discuss
below. In that 2014 opinion, we advised as to whether Act 216 (signed into law on
June 2, 2014), which provides for industrial hemp cultivation in this State, was
preempted by federal law. We concluded that it was. Our opinion explained: ...

[w]e believe a court interpreting the validity of Act 216 would likely find
state regulation of industrial hemp is largely preempted by federal law under
the CSA, with the exception of the narrow circumstances permitted under
Section 7606. Specifically, because Section 7606 does not authorize private
individuals, their authorized entities, or organizations to cultivate industrial
hemp, we believe a Court would likely find that despite the terms of Act 216,
the Department cannot legally authorize private individuals or organizations
to do so. The same is true with respect to permits as, "[flederal section 7606
limits those who may grow or cultivate industrial hemp to two kinds of
entities: institutions of higher education, and state departments of
agriculture." Op. Cal. Att'y Gen., 2014 WL 2573229 (June 6, 2014). Asa
result, unless the entities seeking permits meet Section 7606(a)'s definition of

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September 16, 2024

an "institute of higher education," or in the alternative, meet Section
7606(b)(3)'s definition of a "state department of agriculture," federal law
continues to prohibit the cultivation of industrial hemp despite terms of Act
216.

However, enactment_of the 2018 Farm Act by Congress dramatically revised the
treatment of industrial hemp throughout the United States. including South Carolina.
As described by the National Conference of State Legislatures,

[t]he 2018 Farm Bill changed federal policy regarding industry hemp,
including the removal of hemp from the Controlled Substances Act and the
consideration of hemp as an agricultural product. The bill legalized hemp
under certain restrictions and expanded the definition of industrial hemp
from the last 2014 Farm Bill. The bill also allows states and tribes to submit
a plan and apply for primary regulatory authority over the production of
hemp in their state or in their tribal territory. A state plan must include
certain requirements, such as keeping track of land, testing methods, and
disposal of plants or products that exceed the allowed THC concentration.

Previously, the 2014 Farm Bill defined industrial hemp and allowed for state
departments of agriculture or universities to grow and produce hemp as part of
research or pilot programs. Specifically, the law allowed universities and state
departments of agriculture to grow or cultivate industrial hemp if:

"(1) the industrial hemp is grown or cultivated for purposes of research conducted
under an agricultural pilot program or other agricultural or academic research; and

(2) the growing or cultivating of industrial hemp is allowed under the laws of the
state in which such institution of higher education or state department of agriculture
is located and such research occurs."

The U.S. Department of Agriculture, in consultation: with the U.S. Drug Enforcement
Agency (DEA) and the U.S. Food and Drug Administration, released a Statement of
Principles on Industrial Hemp in the Federal Register on Aug 12, 2016, on the
applicable activities related to hemp in the 2014 Farm Bill.

http:/www/ncsl.org/research/agriculture-and-rural-development/state-industrial-
hemp-statutes.aspx.

The passage of the 2018 Farm Act by Congress immediately led to enactment of
South Carolina Act 14 of 2019, which you well outline in your letter and which
addresses the status of industrial hemp in this State. The purpose of the Hemp
Farming Act is succinctly summarized by the legislation's title: "An Act ... Relating
To Industrial Hemp Cultivation, ... To Define Necessary Terms, [And] To Prohibit
The Cultivation, Handling, or Processing of Hemp Without A Hemp License Issued
By The South Carolina Department of Agriculture ... Thus, the centerpiece of the
legislation is § 46-55-20(A)(1) which provides that "It is unlawful for a person to

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cultivate, handle, or process hemp in this State without a hemp license issued by the
Department pursuant to the state plan." (emphasis added). Without a license, as
explained below, the handling (including possession) or processing of hemp, as
defined by the Act, is characterized as "unlawful." Your letter seeks clarity as to
exactly what this means for law enforcement.

As you note in your letter, the term "hemp" or "industrial hemp" as defined by the
Act, "means the plant Cannabis Sativa L, and any part of that plant, including the
nonsterilized seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids,
salts, and salts by isomers whether growing or not, with the federally defined THC
level for hemp." See § 46-55-10(8). Hemp or “industrial hemp" is "deemed an
agricultural commodity." On the other hand. however. anything exceeding the 0.3%
concentration of THC. as defined. transforms industrial hemp into a controlled
substance (marijuana) under federal and state law. In this regard, the Act defines the
"federally defined THC level for hemp" as "a delta-9 THC concentration of not more
than 0.3 percent on a dry weight basis, or the THC concentration for hemp defined in
7 U.S.C. Section 5940, whichever is greater." As one court has recently stated, "[b]y
choosing to define industrial hemp based upon the concentration of THC in the plant
Cannabis Sativa L, Congress did not amend the CSA so much as carve out a clear
exception for industria] hemp ... [and] Congress clearly "swept away' the provision of
the CSA, at least in so much as it restricts the growth, cultivation, and marketing of
industrial hemp." U.S. v. Mallory, 372 F.Supp.3d 377, 386 (S.D.W.Va. 2019),

The Act also defines “hemp products.” Hemp products are defined as follows:

All products with the federally defined THC level for hemp derived from, or made by
processing hemp plants or hemp plant parts, that arc prepared in a form available for
commercial sale, including, but not limited to, cosmetics, personal care products,
food intended for animal or human consumption, cloth, cordage, fiber, fuel paint,
paper, particleboard, plastics, and any product containing one or more hemp-derived
cannabinoids, such as cannabinoil. Unprocessed or raw plant material, including
nonsterilized hemp seeds is not considered a hemp product. .

Section 46-55-30 makes clear, moreover, that the Act does not seek to regulate hemp
products as defined: "The provisions contained in this chapter do not apply to the
possession, handling, transport or sale of hemp products and extracts, including those
containing hemp-derived cannabinoids, including CBD. Nothing in this chapter
authorizes an person to violate any federal or state law or regulation." (emphasis
added).

(emphasis added).
Thus, as we emphasized in Op. S.C. Att’y Gen., 2021 WL 4630497 (October 4, 2021),

“the lawfulness of hemp and hemp products [as defined above] all hinge on the ‘federally
defined THC level for hemp,’ which means ‘a delta-9 THC concentration of not more than 0.3

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percent on a dry weight basis.’ § 46-55-10(6); see also 7 U.S. C. § 5940(a)(2).” While certainly
this is the law, and if such standard is met, the hemp or THC-infused drink is lawful, the problem
is determination of the THC content in a particular drink or category of drinks sold. Just as with
respect to the legality of any other substance, this is a factual question, beyond the scope of an
opinion of this Office, and is an issue for law enforcement and the courts to determine. See
Hembrook v. Seiber, 2022 WL 3702091 at *9, report and recommendation approved, 2022 WL
4358771 (M.D. Tenn. 2022) [“It is impossible to visually distinguish whether a cannabis plant is
either marijuana or hemp by looking at it — it has to be scientifically tested — and hemp and
marijuana smell the same and are indistinguishable based on smell alone.”’].

One court has commented with respect to the complexities of determining whether food
or beverages infused with THC meet the 0.3% THC or less “on a dry weight basis” threshold as
follows:

[t]he Farm Bill’s THC levels primarily contemplated application to plants; according
to respondents, the 0.3% THC weight limit in the Farm Bill equates to a miniscule
amount of THC in dried plant matter. However, hemp infused edibles and beverages
are more dense than dried plant matter, and as a result, contain significantly higher
amounts of THC than does dried plant matter under the federal weight-based
standard. In other words, the hemp infused products are potent intoxicants.

North Fork Distribution. Inc. v. New York State Cannabis Control Bd., 81 Misc. 952, 955
(2023). In short, the testing must conclude that the THC concentration is 0.3% or less “on a dry
weight basis” to be legal “hemp”; if the concentration is greater than 0.3% on a “dry weight
basis,” it is illegal marijuana. State v. Dixon, 963 N.W.2d 724, 730 (Minn. 2021).

Another court has explained the difficulty in the application of the federal Farm Bill in a
given situation involving THC-infused beverages and other foods thusly:

[m]arijuana is a drug that is comprised from the cannabis sativa plant.... While
there are currently legislative proposals to change marijuana’s scheduled status as a
controlled substance, it is still classified as a schedule | drug under the Controlled
Substances Act (“CSA”) and is strictly regulated. ... Before 2018, the definition of
marijuana in the CSA included hemp. ... However, in 2018, congress passed the
Farm Bill and defined hemp as any part of the cannabis sativa plant with a delta 9
THC that does not exceed 0.3% based on a dry weight... .

Pursuant to the Farm Bill, hemp was removed as a controlled substance under CSA
and its production was permitted under federal law. 21 U.S.C. § 802. While
Congress’s intent may have been to deregulate hemp to facilitate its use in agriculture
and the production of commodities, one consequence of the Farm Bill was that THC
could now be added to consumable products. ... First, the Farm Bill only limits the
potency of delta-9 THC. However, there are other types of THC, such as delta-8 and
delta-10, which can be derived from hemp and used as an intoxicant. Id. Second,
although a 0.3% limit on a dry weight basis for THC would preclude its intoxicating

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effects if it were consumed as an inhalant. when infused into beverages and other
food, these products may be very intoxicating even under the statutory potency limit.

Climbing Kites LLC v. Jowa,F. Supp.3d, 2024 WL 3437598 (S.D. Iowa 2024) at *1-2
(emphasis added) (citing Kline, Hemp-Derived Intoxicants Need Better Cannabis Law
Guardrails, Bloomberg Law (Feb. 12, 2024), .
https//www.bloomberglaw.com/product/blaw/bloomberglawnews/cannabis/x26 1A2B(000000?bc.). In
other words, the focus of the 2018 Farm Bill was agriculture, not canned drinks. With respect to
those drinks, there is a general recognition that even within the authorized statutory limit
requiring that the THC concentration be on a “dry weight basis,” when this amount of THC is
placed in beverages, the result may well become skewed. Thus, individual analysis is required.

Likewise, in Anderson _v. Diamondback Investment Group, _ F4h ___, 2024 WL
4031401 (4™ Cir. 2024), the 4" Circuit recently addressed a situation where an employee was
taking CBD for anxiety. This decision is particularly instructive. The employee was terminated
after having tested positive for marijuana. Among other claims, the employee relied upon North
Carolina’s “lawful products” statute, making it unlawful to discharge an employee who has
engaged in “the lawful use of lawful products if the activity occurs off the premises of the
employer during nonworking hours and does not adversely affect the employee’s job
performance... .” N.C. Gen. Stat. § 95-28.2(b). Thus, the question there was whether the CBD
was lawful.

The employee argued that the THC level of the CBD met federal requirements for
legality. Moreover, the employer did not “dispute that the statute applies equally to hemp-
derived products.” However, the Fourth Circuit concluded that the employee’s claim failed; one
reason this was the case was that Anderson “failed to show that the hemp-derived products she
used were, in fact, legal.” Id. at * 13.

The Court summarized federal and state law differentiating between illegal marijuana and
lawful hemp as follows:

[t]o sum up, under state and federal law, then, certain hemp-derived products — those
with a “delta-9 [THC] concentration of not more than three-tenths of one percent
(0.3%) on a dry weight basis,” id. § 90-87(13a); accord 7 U.S.C. § 16390(1) — don’t
come within the definition of an illegal controlled substance, and instead fall under
the umbrella of a legal hemp-derived product. The critical distinction that separates
illegal marijuana and THC from legal hemp under both state and federal law is a
product’s delta-9 THC concentration. See AK Futures, 35 F.4" at 690 (observing
that “the only statutory metric for distinguishing controlled marijuana from legal
hemp (under the CSA) is the delta-9 THC concentration level.”).

Id. at * 15,

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The Fourth Circuit concluded that Anderson “offered no evidence about the delta-9 THC
concentration of the purportedly lawful products she used such that we could determine whether
those products were legal under state or federal law.” Such a factual showing was crucial.
According to.the Fourth Circuit,

[t]hat the products were sold “over the counter” in gas stations and stores around
North Carolina is not itself evidence of their legality. On the contrary, these products
are notoriously difficult to regulate and often contain higher concentrations of THC
than permitted by law (even if they advertise otherwise), Cf. Cleveland Clinic,
https://health.clevelandclinic.org/cbd-oil-benefits [https://perma.cc/3G8X-6BSZ]. . . .
(“If you’re purchasing CBD oil and other products online or from a local vendor, Dr.
Terpeluk says there’s no real way of knowing the purity of the CBD you’re using, as
it could be mixed with other cannabinoids, such as . . . delta-8, or THC.”).

Nor does Nurse Hudson’s note resolve this issue in Anderson’s favor. In it, Hudson
writes to “verify” that Anderson is taking “over the counter CBD products” or the
“natural product of CBD” “for anxiety and muscle spasm[s].” J.A. 249. And
Hudson states, without more, that “[i]t is common for THC to show up in a drug
urine screen because of these products.” J.A. 249. The note does not provide an
accounting of the specific products Anderson was taking, much less their delta-9
THC concentrations. So this isn’t enough to prove that the products were legal.

Id. Thus, according to the Fourth Circuit, “. . . without evidence of the delta-9 THC
concentration of these products, no fact finder could reasonably find that they were indeed
‘lawful’ — a prerequisite to the applicability of the lawful products statute.” Id. at * 19. It was
simply not enough that the CBD products were being sold across the counter or were presumably
lawful. Evidence was required that the CBD met the federal and State standard. In our view, this
is what a South Carolina court would conclude.

In the criminal law context with respect to drug enforcement, the same issues arise.
Violation of the drug laws must be determined on a case-by-case basis, not a categorical, basis.
As was stated, for example, in Toledo Rojo v. State, 202 N.E.3d 1085, 1088-90 (Ind. Ct. App.
2022),

the difference between a legal substance, such as hemp, and illegal marijuana is
determined by the concentration of delta-9-THC in a particular substance: to be
illegal, the concentration of delta-9-THC must be more than 0.3%.

Toledo Rojo correctly asserts that the state presented no chemical analysis evidence
that the substance seized from his sock was actually marijuana, i.e., that it had a
concentration of delta-9-THC that was more than 0.3%. ...

As the Fedij Court [Fedij v. State, 186 N.E.3d 696, 709 (Ind. Ct. App. 2022)] stated,

[t]he statute proscribes possession of a specific substance, and if the State
seeks to obtain a conviction under that statute, it is entirely the State’s burden

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to prove that the proscribed substance was in fact in defendant’s possession.
Leaving the fact-finder to simply guess whether a substance is legal or illegal
from equivocal evidence is not a sufficient basis to sustain a criminal
conviction.

Id. at 709.

Again, individual case-by-case analysis is imperative; otherwise, it is pure “guesswork” as to the
concentration of THC in a particular canned drink.

Moreover, by analogy, the legality of gaming machines in South Carolina is instructive,
In Allendale Cty. Sheriff's Office v. Two Chess Challenve I, 361 S.C. 581, 586-87, 606 S.E.2d
471, 474 (2004), our Supreme Court reversed the magistrate’s conclusion that an entire category
of video gaming machines was legal because they operated “in an identical manner.” The Court
held instead that the forfeiture process required that there must be a “machine-by-machine”
analysis. Accordingly, the magistrate “lacked jurisdiction to determine the legality of machines
not before the court.” In short, the legality of machines could not be determined “en masse” or
by a “blanket” categorization. Likewise, the legality of a hemp-infused drink must be
ascertained on an individual basis.

It is clear from these authorities that the overarching purpose of the federal and state
hemp legislation was the deregulation of hemp for its use in agricultural endeavors. Application
of the legislation to THC-infused drinks was, as the Court explained in Climbing Kites a
“consequence” of the legislation, but clearly not the principal focus of lawmakers.
Determination of the legality of a THC-infused beverage is far more problematical than hemp in
the field. The legal requirement for THC-infused beverages may be easily stated, as we do here:
clearly, if the hemp product does not exceed a concentration of 0.3% THC on a dry weight basis,
it is legal. However, application of this legal requirement to a particular product is much more
difficult and must be determined on an individual basis. That is precisely why the General
Assembly needs to renew its consideration of the Hemp Farming Act in light of these new public
health and other issues. States elsewhere, such as Iowa, are now regulating THC-infused
products. The pressing need for such regulation is well stated in an article in U.S. Law Week as
follows:

[hJemp-derived consumable products share an important trait with the state-regulated
marijuana industry — both manufacture intoxicating substances that are derived from
the cannabis plant.

This is why it’s perplexing to see that Smart Approaches to Marijuana, known as
project SAM, has its sights set on the state-regulated marijuana industry, rather than
focus more of its attention on the dangerous un regulated hemp-derived intoxicants
that are readily available to children without restriction,

The Honorable G. Murrell Smith, Jr.
Page 10
September 16, 2024

It’s apparent that members of Congress didn’t fully appreciate that they were
legalizing intoxicating hemp cannabinoid products without guardrails when they de-
scheduled hemp and its derivatives in the 2018 Farm Bill.

Because hemp and its derivatives that test below 0.3% THC ona dry-weight basis are
now arguably legal, hemp cannabinoid manufacturers are exploiting a loophole.
They’re infusing high levels of THC in food products such a beverages, gummies,
and brownies that are heavy — and thus test below 0.3% THC ona dry-weight basis.

Today, any child can buy intoxicating hemp-derived candy, and have it shipped to
their house without age verification, lab testing for heavy metals and other dangerous
biproducts, dosage limits, or packaging and labeling standards. Oftentimes these
products replicate well-known children’s candy brands.

Kids can order direct-to-consumer products online that are astonishingly more
powerful than the THC products allowable for sale in the adult-only regulated
marijuana marketplace. The Food and Drug Administration has issued warnings to
the public and sent warning letters to manufacturers about these dangers.

What is clear is that these products should be regulated just like marijuana products
in the 38 states with medical marijuana programs and 24 states with legalized adult-
use. This void in law and regulation should concern everyone.

Kline, “Hemp-Derived Intoxicants Need Better Cannabis Law Guardrails,” U.S. Law Week, Feb.
12, 2024. We are confident that the General Assembly did not foresee these complex issues
when enacting the 2019 Hemp Farming Act.

Conclusion

Beverages infused with concentrations of delta-9 THC of 0.3% or less on a dry weight
basis are now “legal” under the literal language of the federal and state Farm Acts. That is what
federal and state law expressly declare. We offer that conclusion herein.

However, the issue is complex. Compare Toledo Rojo, supra. As we noted in our
opinion of July 10, 2019, the purpose of the Hemp Farming Act of 2019 “is succinctly
summarized by the legislation’s title: An Act .. . Relating To Industrial Hemp Cultivation, . . .
To Define Necessary Terms, [And] To Prohibit The Cultivation, Handling, or Processing of
Hemp Without A Hemp License Issued by The South Carolina Department of Agriculture... . .”
See Op. S.C. Att’y Gen., 2019 WL 3243864 (July 10, 2019). Thus, the Act was aimed primarily
at legalizing industrial hemp and its cultivation. The Legislature simply left the hemp products
issue for a later date by stating that products containing concentrations of delta-9-THC of 0.3%
or less on a dry weight basis are legal. And as was concluded in Anderson, this same legal
standard applies to hemp products as well as it does to hemp itself.

The Honorable G. Murrell Smith, Jr.
Page 11
September 16, 2024

Further, courts have determined that the amount of THC in hemp in the field may not be
always the same as that of hemp in a canned drink. Federal and state law legalizes the delta-9
0.3% THC content to be calculated on a “dry weight basis.” In this regard, as courts have found,
a delta-9 0.3% THC level on a dry weight basis may not always translate into that same level of
THC when placed in a drink or beverage. As one court has put it, “although a 0.3% limit on a
dry weight basis for THC would preclude its intoxicating effects if it were consumed as an
inhalant, when infused into beverages and other foods, these products may be very intoxicating
even under the statutory potency limit.” Climbing Kites LLC v. Iowa, supra. The Court in
Climbing Kites noted that Congress’s intent in passing the 2018 Farm Bill “may have been to
deregulate hemp to facilitate its use in agriculture and the production of commodities,” but not
necessarily to allow [or regulate] THC’s placement in consumable products.

While Congress and the General Assembly have declared that a delta-9 concentration of
THC below the 0.3% level is legal, a “blanket” conclusion of legality beyond stating the
statutory limit of concentrations of 0.3% THC or less cannot be made in an opinion of this
Office. Such determination must be made on an individual basis. See State v. Crumpton, —__
S.E.2d , 2024 WL 3588315 (Ct. App. 2024) at *5 [As declared in SLED’s notice and by
Cowan’s own admission, the testing method used here could not differentiate between legal
industrial hemp and illegal marijuana.”]. The Fourth Circuit in Anderson, recognized that
merely because products are being sold over the counter in stores cannot be considered as
evidence of individual concentration of THC. As we have emphasized in previous opinions
regarding the Hemp Farming Act, such an assessment would require the investigation and
determination on a case-by-case basis. Paraphrasing the Court in Allendale, rather than
determining legality machine-by-machine, such must be done can-by-can. Only law
enforcement or a court — assisted by lab testing — may determine whether or not a particular
canned drink infused with THC meets the 0.3% or less requirements of the law. All we are able
to do here is state what the law does: products with a THC concentration of 0.3% or less on a dry
weight basis are legal. It may well be that certification of the 0.3% or less by the manufacturer
satisfies the requirement of legality.

Accordingly, in light of the legality of hemp-infused drinks, as other states are now
doing, the General Assembly may wish to consider what one authority has described as
providing sufficient “guardrails.” See Kline, supra. Currently, there are no such “guardrails” in
the law beyond the statutory limit of 0.3% or less. In light of the need for clarity, legislatures in
other states have begun to consider numerous issues — including public health — regarding THC-
infused drinks. These include, among other considerations: whether children can purchase those
drinks; whether there should be age limits thereupon; whether labelling requirements for such
drinks are required; the safety of THC-infused drinks; whether there is some workable method
for ensuring the content of a can meets the prescribed limits of the law without the need for
testing can-by-can; as well as the threshold issue of legality in the first instance. See Climbing
Kites, supra (lowa). In addition, the Legislature may well wish to address which administrative
agency is responsible for enforcement and regulation. We also note that Congress is seeking to
legislate with respect to these same issues in the new Farm Bill, and it is our understanding that

The Honorable G. Murrell Smith, Jr.
Page 12
September 16, 2024

certain restrictions have already passed the House. Such legislative clarification — which we
have emphasized the need for in previous opinions, in other contexts — may be determined by the
General Assembly to greatly serve the public interest, and public health and safety. Your
questions regarding the sale of THC-infused drinks is one such area.

In summary, the Hemp Farming Act of 2019, as now written, makes non-alcoholic drinks
containing concentrations of delta-9 THC of 0.3% or less on a dry weight basis legal. If such a
drink meets this statutory requirement, it is legal under current law. Beyond that, this Office in
an opinion, cannot go. The Legislature may wish to further address the many issues raised
herein — including public health — arising from the sale of THC-infused drinks.

Sincerely,

a Xobert D. Coo . Z

Solicitor General