Many locations are now offering to sell CBD or THC products, but this leaves many individuals questioning what is legal and what is not.
The first step to understanding the legality of these items is understanding how Georgia law defines them.
As of May 10, 2019, hemp and hemp products, as defined by Georgia law, are no longer a violation of Georgia’s Controlled Substances Act. In Georgia law hemp is defined as “the Cannabis sativa L. plant and any part of such plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with the federally defined THC level for hemp or a lower level,” while hemp products are defined as “all products with the federally defined THC level for hemp derived from, or made by, processing hemp plants or plant parts that are prepared in a form available for legal commercial sale, but not including food products infused with THC unless approved by the United States Food and Drug Administration.”
Currently, the federally defined THC level for hemp is a “delta-9-THC concentration of not more than 0.3 percent on a dry weight basis.” Many of the products that people are referring to as CBD oil fall within this category. These products are legal so long as they are not food infused products, unless they have been approved by the FDA. Production and distribution of these products, outside of commercial sales, is still highly regulated in Georgia and must strictly comply with Georgia’s laws.
The next category that we look at is what Georgia law defines as “Low THC Oil.” Low THC oil is defined in the law as “an oil that contains an amount of cannabidiol and not more than 5 percent by weight of tetrahydrocannabinol, tetrahydrocannabinolic acid, or a combination of tetrahydrocannabinol and tetrahydrocannabinolic acid which does not contain plant material exhibiting the external morphological features of the plant of the genus Cannabis.”
Low THC oil can be possessed by a person who has registered with the Georgia Department of Public Health and is in possession of their registration card, so long as the person possesses less than 20 fluid ounces of low THC oil and it is in a pharmaceutical container labeled by the manufacturer stating the percentage of tetrahydrocannabinol (THC).
The law defines who qualifies for these types of cards and the process to obtain them, but the easiest course of action to ensure compliance with this law is to go through a licensed physician in Georgia to determine qualification.
When a person violates the provisions of the law regarding low THC oil and possesses less than 20 fluid ounces of low THC oil, then the person is committing a misdemeanor, which carries a maximum penalty of up to 12 months in jail. If a person possesses more than 20 fluid ounces of low THC oil then the person is committing a felony. Additionally, if a person not approved to manufacture, distribute, dispense, sell, or possess with intent to distribute low THC oil does so, regardless of the amount, it is a felony. The range of punishments for felony violations of this law vary depending on the amount of low THC oil, but on the low end it carries one to 10 years in prison.
Possession of THC, other than low THC oil or hemp products as described above, is a felony in Georgia and possession of marijuana is still illegal throughout the state of Georgia. Possession of marijuana less than one ounce is a misdemeanor, while possession of more than one ounce is a felony. Much like low THC oil, when a person manufactures, distributes, dispenses, sells, or possesses with intent to distribute marijuana, regardless of the amount, it is a felony.
Unless an individual is prescribed low THC oil and is complying strictly with those requirements, these laws can create many challenges for the average member of the public. The process in which CBD oils are regulated and tested can vary significantly from state to state, which could mean that what is written on the label is not accurate. If the product contains more THC than listed on the label, possession could be a crime as outlined above.
Other challenges arise from the fact that other states and the federal government may have different laws regarding these items, which could result in federal prosecution or violations of the laws of other states when traveling. Some courts are also reporting that CBD oil may cause individuals to have positive drug screens for THC. If a person is charged with possessing any of these products, having a clear understanding of the differences and how these differences are determined is fundamental to raising appropriate defenses to these charges.