FOR IMMEDIATE RELEASE
NEWS RELEASE
October 19, 2018
For More Information, contact:
Mike Lewis (334) 353-2199
Steve Marshall
Joy Patterson (334) 242-7491
Page 1 of 1
Alabama Attorney General
Please note that the CBD guidance has been updated in light of today’s
Congressional action on the Farm Bill. Please refer to the first paragraph of the
public guidance document.
Attorney General Steve Marshall, Alabama Law Enforcement
Agency, Office of Prosecution Services and Alabama Department of
Forensic Sciences Issue Public Guidance on Alabama Law
Concerning Possession of Cannabidiol (CBD)
(MONTGOMERY) – Attorney General Steve Marshall joined with the leadership of the
Alabama Law Enforcement Agency, the Office of Prosecution Services and the Alabama
Department of Forensic Sciences to draft and distribute public guidance on the current
state of Alabama law on the possession, use, sale or distribution of Cannabidiol, or
CBD.
The guidance comes in response to a growing number of inquiries about increasing
sales of CBD around the state.
This memorandum will be accessible by the public from the Attorney General’s website
at ago.alabama.gov.
Link to public guidance document
(Also attached)
–30–
501 Washington Avenue * Montgomery, AL 36104 * (334) 242-7300
www.ago.state.al.us
S T A T E OF ALA BA M A
OFFICE OF THE ATTORNEY GENERAL
STEVE MARSHALL 501 WASHINGTON AVENUE
ATTORNEY GENERAL MONTGOMERY, AL 36130
(334) 242-7300
WWW.AGO.ALABAMA.GOV
November 20, 2018
Updated on December 12, 2018
PUBLIC NOTICE
FROM: Steve Marshall, Alabama Attorney General; Hal Taylor, Secretary of
the Alabama Law Enforcement Agency; Barry Matson, Executive
Director of the Office of Prosecution Services; Angelo Della Manna,
Director of the Alabama Department of Forensic Science s
SUBJECT: Guidance on Alabama Law Regarding the Possession, Use, Sale, or
Distribution of CBD
NOTE: This notice has been updated to reflect recent action by the U.S.
Congress regarding cannabidiol (CBD) derived from industrial hemp. On
December 12, 2018, the U.S. House of Representatives gave final passage to the
i
Agricultural Improvement Act of 2018 which is expected to be signed into law.
This bill contains a provision legalizing industrial hemp, beyond the existing pilot
programs passed by Congress in 2014. As a result of this Congressional action,
CBD derived from industrial hemp, with a THC concentrat ion of not more than
.3%, can be legally produced, sold, and possessed in the State of Alabama.
However, as stated in the bill, the new federal law will not prevent states from
adopting laws to restrict or regulate the production of industrial hemp.
Furthermore, prescription drugs and other consumables containing CBD will
continue to be regulated by the U.S. Food and Drug Administration. The guidance
below still applies to CBD derived from marijuana or CBD derived from hemp
with above a .3% (three one-thousandths) THC concentration.
Recent questions surrounding the legality of cannabidiol (CBD) suggest
that a brief explanation and review of several relevant Alabama criminal laws
might be helpful to the public.
Section 13A-12-212 of the Alabama Criminal Code makes it illegal to
possess or receive a controlled (regulated) substance, while Sections 13A-12-213
to 214 specifically address the possession of marijuana – punishable by a Class A
misdemeanor when possessed for personal use or by a Class C felony when
possessed for reasons other than personal use.
Section 13A-12-211 of the Alabama Criminal Code makes it illegal to sell,
furnish, give away, deliver, or distribute a controlled substance, including marijuana. A violation of this section is punishable by a Class B felony. Section
13A-12-231 of the Alabama Criminal Code makes it illegal to “traffic” – sell,
manufacture, deliver, or bring into the state – any part of a cannabis (marijuana)
plant in an amount greater than 2.2 pounds. This crime carries mandatory prison
time that increases with the weight of the marijuana in question.
The use of the term “marijuana” or “cannabis” in each of the crimes
described above includes the marijuana extract cannabidiol, or CBD.
ii
In 2014, the Alabama Legislature passed Carly’s Law to provide an
affirmative defense to a narrow class of individuals – those with a debilitating
epileptic condition and who have a prescription for CBD authorized by the UAB
Department of Neurology – who would otherwise be in illegal possession of CBD.
The law also extends the affirmative defense to possession of CBD by a parent or
caretaker of an individual who has both the required condition and prescription.
The Legislature included a “sunset date” of July 1, 2019 in the law , which means
that the law and its protections will no longer exist as of that date.
The effect of Carly’s Law is that an individual who has a debilitating
epileptic condition and receives a prescription for CBD approved by the UAB
Department of Neurology, who is then criminally prosecuted for unlawful
iii
possession of marijuana, may be excused for his or her otherwise unlawful
conduct. The same would apply to possession of CBD by the individual’s parent
or caretaker. Carly’s Law did not legalize the possession or use of CBD.
iv
Two years later, the Alabama Legislature passed Leni’s Law to provide an
affirmative defense for another class of individuals – those who have a chronic or
debilitating disease or medical condition that produces seizures for which a
person is being treated – who would otherwise be in illegal possession of CBD.
For the affirmative defense to apply, the CBD must have been tested by an
v
independent third-party laboratory. The law also extends the affirmative defense
to possession of CBD by a parent or guardian of a minor with such a condition.
The effect of Leni’s Law is that an individual who has a chronic or
debilitating disease or medical condition that produces seizures, who is criminally
vi
prosecuted for unlawful possession of marijuana for personal use, may be
excused for his or her otherwise unlawful conduct. The same would apply to
possession of CBD by the individual’s parent or guardian. Leni’s Law did not
legalize the possession or use of CBD.
On October 28, 2018, the Alabama Department of Public Health adopted a
rule allowing for the medical use of FDA-approved drugs that contain CBD (i.e.,
Epidiolex). In other words, Epidiolex is now legal for a doctor to prescribe for
the treatment of two forms of epilepsy – Lennox-Gastaut syndrome and Dravet
syndrome. While Carly’s Law and Leni’s Law provide only an affirmative defense to the otherwise illegal possession of CBD, Epidiolex will be regulated in the
same way as any other prescription drug.
Selling, delivering, or distributing CBD – other than the FDA-approved
prescription drug Epidiolex – is illegal under Alabama law. The affirmative
defenses found in Carly’s Law and Leni’s Law can only be raised by individuals
prosecuted for unlawful possession of marijuana. In other words, Carly’s Law and
Leni’s Law offer no “safe harbor,” even to the narrow class of individuals
vii viii
covered, for selling or distributing marijuana, or trafficking in marijuana. This
is a conclusion of law based on a plain reading of the statute, regardless of what
the Alabama Legislature may have intended. Carly’s Law protects only the UAB
Department of Neurology and the UAB School of Medicine from being prosecuted
for marijuana-related crimes (like distribution) arising out of the prescription of
ix
CBD to those with a debilitating epileptic condition. It is illegal for CBD to be
sold by any convenience store, gas station, or private individual.
It is also worth noting that Carly’s Law and Leni’s Law include a provision
that, for an individual to successfully assert the affirmative defense, the THC
level of the CBD must be “no more than 3% relative to CBD according to the rules
adopted by the Alabama Department of Forensic Sciences.” To be clear, all CBD –
whether above or below 3% THC – is illegal under Alabama law, except for the
prescription drug Epidiolex. The affirmative defense provided to a narrow class
of individuals under Carly’s Law and Leni’s La w is available when the THC level
is below 3% relative to CBD, but unavailable if the CBD in question has a THC
level above 3% relative to CBD.
As the law enforcement agencies of the State of Alabama and its
subdivisions, it is our responsibility to interpret and enforce the law as written by
the Alabama Legislature. This public notice does not address f ederal law
pertaining to CBD, which is enforced by federal law enforcement agencies. If you
have questions about this guidance or its application to your situation, please
contact your local district attorney’s office. Law enforcement officials with
questions may contact ALEA or the Opinions Division of the Alabama Attorney
General’s Office. All health-related questions should be directed to the Alabama
Department of Public Health.
i th
Agriculture Improvement Act of 2018, H.R. 2, 115 Cong. (2018).
ii
Carly’s Law, No. 2014-277, 2014 Ala. Laws 881 (codified at Ala. Code ß 13A-12-214.2).
iii
Carly’s Law does not specify whether the affirmative defense applies to unlawful possession of marijuana in the first and second degree;
however, because the affirmative defense requires an individual to have a prescription, the defense may not be successful in a prosecution for
unlawful possession of marijuana not for personal use (or marijuana possession in the first degree). See Ala. Code ß 13A-12-214.2(c)-(d).
iv
Leni’s Law, No. 2016-268, 2016 Ala. Laws 663 (codified at Ala. Code ß 13A-12-214.3).
v
See Ala. Code ß 13A-12-214.3(a)(2)(a) (setting forth the statutory definition of CBD, which must be “tested by a[n] independent third-party
laboratory”).
vi
See id. ß 13A-12-214.
vii
See generally id. ß 13A-12-211 (relating to distribution of controlled substances).
viii
See generally id. ß 13A-12-231 (relating to trafficking in illegal substances).
ix
See id. ß 13A-12-214.2(g), (i).
