North Carolina has not legalized any form of adult-use or recreational use of marijuana. With the exception of the use of hemp extract for treatment of intractable epilepsy, the use of cannabis for medical purposes is not authorized in North Carolina.
Hemp production has been legalized in North Carolina, but only as part of the state’s pilot program as allowed under federal law. The Agriculture Improvement Act of 2018 (known as the 2018 Farm Bill), which was signed into federal law on December 20, 2018, removed hemp as a Schedule I controlled substance under the Controlled Substance Act. The term “hemp” is defined in the 2018 Farm Bill 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 0.3 percent on a dry weight basis.” On October 31, 2019, the U.S. Department of Agriculture (USDA) issued an interim final rule (Interim Final Rule) establishing the domestic hemp production regulatory program to facilitate the legal production of hemp, as set forth in the 2018 Farm Bill. The Interim Final Rule outlines provisions for the USDA to approve plans submitted by the states for the domestic production of hemp. It also establishes a federal plan for producers in states that do not have their own USDA-approved plan.
As of today (December 2020), North Carolina has not submitted a hemp production plan to the USDA for approval under the 2018 Farm Bill. Accordingly for the 2021 growing season and until authority under the 2014 Farm Bill terminates on September 30, 2020, hemp production in North Carolina is governed by North Carolina General Statute Chapter 106, Article 50E (Industrial Hemp) that implements North Carolina’s industrial hemp research program established under the 2014 Farm Bill.
North Carolina has not authorized the medical use of Marijuana. In 2014, the North Carolina Epilepsy Alternative Treatment Act (N.C. Gen. Stat. 90-113.100– 113.106) was signed into law, which permits the use of hemp extract as an alternative treatment for intractable epilepsy. To come within the definition of “hemp extract” under the Act, the extract must be composed of less than 0.9% tetrahydrocannabinol by weight and at least 5% cannabidiol (CBD) by weight. The Act will be repealed effective July 1, 2021.
As stated above, hemp production has been legalized in North Carolina, but only as part of the state’s pilot program as allowed under federal law. In 2015, and in response to passage at the federal level of the Agricultural Act of 2014 (Public Law 113-19) (2014 Farm Bill), the North Carolina general assembly passed Senate Bill 313 to establish an agricultural pilot program for the cultivation of industrial hemp in the State of North Carolina. The bill was passed to promote and encourage the development of an industrial hemp industry in North Carolina in order to expand employment, promote economic activity, and provide opportunities to small farmers for an environmentally sustainable and profitable use of crop lands. Among other things, Senate Bill 313 established the North Carolina Industrial Hemp Commission to establish an agricultural program to grow or cultivate industrial hemp in the state, to issue licenses to cultivate industrial hemp for commercial purposes consistent with federal law, and to propose rules and regulations for adoption by the Board of Agriculture to administer and supervise North Carolina’s state pilot program. In July 2016, North Carolina law governing industrial hemp was further modified by House Bill 992, which, among other things, clarified that licenses were being issued for research, rather than commercial purposes. Further, North Carolina State University and North Carolina A&T State University were appointed by House Bill 992 as the entities charged with managing and coordinating the state’s industrial hemp research program. The Industrial Hemp Commission adopted temporary rules for review in February 2017; these were approved by the Rules Review Commission of the Office of Administrative Hearings.
The statutory framework governing industrial hemp production is set forth in Chapter 106, Article 50E of the North Carolina General Statutes. As of this writing (December 2020), North Carolina continues to operate under the industrial hemp pilot program authorized under the 2014 Farm Bill.
Applications for cultivation of industrial hemp in North Carolina are currently handled and processed by the Plant Industry Division of the North Carolina Department of Agriculture and Consumer Services (NCDA) and reviewed for approval or denial at the next scheduled meeting of the Industrial Hemp Commission. Processors of industrial hemp in North Carolina are not licensed, but processors must register with the Hemp Commission and, at the end of each calendar year, report the total weight and type of industrial hemp processed from the North Carolina Industrial Hemp pilot program to the Hemp Commission.
While the Industrial Hemp Commission oversees North Carolina’s industrial hemp pilot production program and licensed growers, other divisions of the NCDA would regulate any retail uses of hemp or products derived from hemp. North Carolina does not have a comprehensive set of laws or rules that govern the legal status of CBD. The Food & Drug Protection Division of the NCDA takes the position that use of CBD in any food product or marketing it as a dietary supplement is expressly prohibited under both federal and state law. Hemp-seed-derived products (dehulled hemp seeds, hemp seed protein, and hemp seed oil), which contain de minimis levels of CBD, currently can be lawfully marketed in human food without the need for any further U.S. Food & Drug Administration (FDA) approval, provided the products do not make drug claims or claims that are false or misleading, and that they comply with all other applicable requirements. CBD oil, subject to other limitations provided under applicable law (such as THC concentration limits), can be legally sold in North Carolina, subject to the limitations discussed above and other applicable guidance. To a large extent, North Carolina looks to FDA guidance regarding the marketing and sale of CBD.
North Carolina has not legalized adult-use marijuana or any other form of recreational use. Marijuana is classified under the North Carolina Controlled Substances Act (N.C. Gen. Stat. 90-86 et. seq.) as a Schedule VI controlled substance. A person who possesses one-half of an ounce or less of marijuana is guilty of a Class 3 misdemeanor, but any sentence of imprisonment imposed must be suspended. Possession of more than one-half of an ounce, but not more than one-and-one-half ounces, is guilty of a Class 1 misdemeanor. If a person is found to possess more than one-and-one-half ounces of marijuana, the violation is punishable as a Class I felony.
Upcoming Legislative Agenda
As noted above, North Carolina does not currently (as of December 2020) have a hemp production regulatory plan approved by the USDA under the 2018 Farm Bill and its implementing regulations. It is expected that North Carolina will continue to operate its industrial hemp pilot program under the 2014 Farm Bill until at least September 30, 2021. Additional legislative action would be needed for North Carolina’s hemp industry to continue to operate in its current form beyond such date.
Information regarding North Carolina’s Industrial Hemp Pilot Program can be found at: https://www.ncagr.gov/hemp/index.htm Additional information on hemp production and related issues can be found at the NC State University Extension Hemp web site: https://hemp.ces.ncsu.edu/