Court of Appeals Rules that Delta-8-THC and Other Hemp Extracts Are Legal, Orders the District Attorney to Return Our Client’s Seized Property
Last Thursday, the Court of Appeals became the first appellate court in Georgia to consider whether Delta-8-THC and other similar products are legal hemp extracts or illegal controlled substances under state law—and our clients won.
Our clients are a distribution company that supplies convenience stores, gas stations, and vape stores with tobacco, nicotine vapes, and hemp products that contain CBD, CBO, Delta-8-THC, Delta-10-THC, and other hemp extracts. Hemp is a form of cannabis that lacks significant quantities of Delta-9-THC, the kind of THC that gets users “high.” Hemp and hemp extracts were legalized in 2019 under the Georgia Hemp Farming Act, which legalizes all cannabis and cannabis extracts as long as they contain “less than 0.3% Delta-9-THC.
This case began in early 2022, when the District Attorney’s Office and Gwinnett County Metro Task Force raised our client’s warehouse, seizing their entire hemp inventory, their business records, and almost $300,000 in cash. Even though Attorney Tom Church had previously obtained an injunction against the District Attorney prohibiting her from conducting further raids and arrests, they refused to return our clients property. Litigation ensued, and we ended up taking the case to the Court of Appeals.
We argued that Delta-8-THC and other hemp extracts are not controlled substances because hemp and hemp products are excluded from the definitions of “marijuana” and “THC” under Georgia’s criminal code. After we presented expert evidence regarding the differences between hemp and marijuana in our injunction case, the State had to concede that, in their pure form, hemp extracts are not illegal. The State maintained that they become illegal, however, if found in food products.
The Court of Appeals rejected the State’s argument, holding that it “has no merit.” The Court found that the “plain language” of Georgia’s criminal laws prohibiting marijuana and THC makes exceptions for any cannabinoids extracted from hemp, as long as they contain less than 0.3% Delta-9-THC.
While the judges didn’t all agree on the reasons, they all agreed our clients were entitled to all of their property back, and that the State did not have the right to seize their property or retain custody of it. Critically, the majority opinion explicitly recognized the legality of Delta-8-THC, Delta-10-THC, and other similar products, regardless of whether they are contained in edible or non-edible products.
There has been extensive media coverage of the case, and Attorney Tom Church has broken down the Court’s opinion for media outlets in the metro Atlanta area, including interviews with Fox5, Atlanta News First, 11Alive, and Georgia Public Broadcasting. His analysis of the case has been featured in legal publications like the Daily Report and Law360. The Court has published its opinion online and has archived the oral arguments in the case on their website.
Because the judges did not unanimously agree on the details, and because their opinion was based in part on the fact that the District Attorney conceded that some hemp-derived THC products are legal, there is still a possibility that other prosecutors, sheriffs, and other officials may continue misinterpreting the law. In fact, our firm was recently retained by another business that has been raided based on its sale of hemp extracts..
So, while this opinion was undoubtedly a win for the hemp industry, retailers, distributors, and manufacturers of hemp products should continue staying up-to-date on the law and ensuring they have testing and chain-of-custody policies in place to comply with the law.
If you or a loved one has been contacted by law enforcement due to the sale or possession of Delta-8-THC or other hemp products, call our firm. Our firm has successfully fought on behalf of small businesses and consumers across Georgia, and we are ready to fight for you.