Are Mississippi Farmers Growing Legal Hemp or Illegal Pot?

NOTE: The following is intended to be educational. It does not constitute legal advice and should not be relied upon as same.

In theory, marijuana (whether medical or otherwise) is illegal on a federal level under the Controlled Substance Act. In contrast, hemp is legal on a federal level. Both the marijuana and hemp plants derive from the same plant genus, commonly referred to as cannabis. The dichotomy in the legality of the two plants (hemp vs. marijuana) has created a great source of confusion for the public and for law enforcement. To break down the current legality of hemp in Mississippi, it is necessary to review the federal law regarding hemp and Mississippi laws regarding both hemp and marijuana.[1]

2018 FARM BILL

On December 20, 2018, President Donald Trump signed into law the Agriculture Improvement Act of 2018, Pub.L. 115-334 (the “2018 Farm Bill”). The 2018 Farm Bill legalized hemp production and removed hemp from the Controlled Substance Act (“CSA”). Thus, hemp is no longer a controlled substance (Schedule I or otherwise) under the CSA. The 2018 Farm Bill also amended the Agricultural Marketing Act of 1946 (the “AMA”) to allow States and Indian tribes to regulate hemp production or follow a U.S. Department of Agriculture (“USDA”) plan to regulate the same. Finally, the 2018 Farm Bill allowed for the free flow of hemp in interstate commerce, and prohibits States or Indian tribes from blocking the shipment of hemp through that State or Indian tribal territory. See May 28, 2019 Memorandum Executive Summary of New Hemp Authorities located at https://ia803109.us.archive.org/9/items/6309747-USDA-Memo/6309747-USDA-Memo_text.pdf. In other words, a State can decide to not allow its constituents to grow hemp within its jurisdiction, but it cannot prevent the flow and shipment of hemp within its borders.

The 2018 Farm Bill defines hemp 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 concentration of not more than 0.3 percent on a dry weight basis.[2],[3]

(Emphasis added). The definition is established by Congress and not subject to change by the USDA or States. As stated in the Federal Register, “[a]ny change to the statutorily established threshold of THC concentration requires an amendment to the statute. … [The Agricultural Marketing Service of the USDA] has no discretion to change the THC level or to treat States and Tribes differently as the 2018 Farm Bill applies to all production of hemp in the U.S.”[4] The Conference Report for the 2018 Farm Bill further states explicitly that “state and Tribal governments are authorized to put more restrictive parameters on the production of hemp, but are not authorized to alter the definition of hemp or put in place policies that are less restrictive.”[5] (Emphasis added).

As defined by statute, hemp must contain no more than a 0.3% concentration of delta-9 tetrahydrocannabinol (“delta-9 THC”) – marijuana’s primary psychoactive chemical/cannabinoid. Cannabis that exceeds the 0.3% delta-9 THC concentration limit falls under the definition of marijuana and the CSA. The only determining factor to distinguish marijuana from hemp is the delta-9 THC concentration.[6] After establishing the legality of hemp, the 2018 Farm Bill establishes the mechanism by which States, Indian tribes, or the USDA will implement and allow for the production of hemp. In general, a State desiring to have regulatory authority over its hemp program must submit to the Secretary of the USDA, through its department of agriculture and in consultation with its Governor and chief law enforcement officer of the State, a plan by which that State will monitor and regulate its production of hemp.[7]

The decision to regulate its own production of hemp is optional. If a State does not or cannot implement its own hemp program/plan, the USDA is the regulatory body charged with overseeing that State’s plan.[8] To be clear, in the case of a State without a State-run hemp plan, the production of hemp shall be subject to a plan established by the USDA to monitor and regulate that State’s hemp program! To date, only 8 States have declined to implement a State regulated hemp program. Mississippi is one of those 8 states. Thus, Mississippi’s hemp program is monitored and regulated by the USDA and its regulations.[9] According to the MS Department of Agriculture, “[a]ll requirements and information related to the USDA hemp program may be viewed at https://www.ams.usda.gov/rulesregulations/hemp.”

The 2018 Farm Bill allows States to regulate their own hemp program and provides that, for those who do so, nothing in this law prevents or limits a State from establishing a program that is more stringent than this law.[10] However, nothing in this law allows a State to prohibit the interstate commerce of hemp, as defined in the AMA of 1946, or hemp products.[11] To be clear, “[n]o State … shall prohibit the transportation or shipment of hemp or hemp products produced in accordance with [the AMA of 1946] through the State ….”[12] (Emphasis added).

In its simplest form, Congress established a hemp program. States may regulate their own programs or not. If they do not, Congress appointed the USDA to regulate the program. Either plan or program must establish basic controls to prevent the masking of illegal marijuana from hemp. The core elements of control are: (1) maintain information on the land where hemp is cultivated; (2) establish a procedure for testing delta-9 THC levels to ensure conformance with the statutory definitions of hemp using “post-decarboxylation” or other similarly reliable methods; (3) have in place effective mechanisms to dispose of non-compliant plants (those exceeding allowable delta-9 THC levels); (4) ways to ensure enforcement; (5) annual inspections; and (6) other practices or procedures the Secretary deems appropriate.

DOMESTIC HEMP PRODUCTION PROGRAM

The implementing regulations for the Domestic Hemp Production Program provide further guidance in implementing the 2018 Farm Bill law. These regulations are found at 7 CFR Part 990, effective March 21, 2022. Relevant definitions for purposes of this opinion are as follows:

Acceptable hemp THC level. When a laboratory tests a sample, it must report the total delta-9 tetrahydrocannabinol content concentration level on a dry weight basis and the measurement of uncertainty. The acceptable hemp THC level for the purpose of compliance with the requirements of State or Tribal hemp plans or the USDA hemp plan is when the application of the measurement of uncertainty to the reported total delta-9 tetrahydrocannabinol content concentration level on a dry weight basis produces a distribution or range that includes 0.3 percent or less. For example, if the reported total delta-9 tetrahydrocannabinol content concentration level on a dry weight basis is 0.35 percent and the measurement of uncertainty is ±0.06 percent, the measured total delta-9 tetrahydrocannabinol content concentration level on a dry weight basis for this sample ranges from 0.29 percent to 0.41 percent. Because 0.3 percent is within the distribution or range, the sample is within the acceptable hemp THC level for the purpose of plan compliance. This definition of “acceptable hemp THC level” affects neither the statutory definition of hemp, 7 U.S.C. 1639o(1), in the 2018 Farm Bill nor the definition of “marihuana,” 21 U.S.C. 802(16), in the CSA.

Cannabis. A genus of flowering plants in the family Cannabaceae of which Cannabis sativa is a species, and Cannabis indica and Cannabis ruderalis are subspecies thereof. Cannabis refers to any form of the plant in which the total delta-9 tetrahydrocannabinol concentration on a dry weight basis has not yet been determined.

Decarboxylated. The completion of the chemical reaction that converts THC-acid (THCA) into delta-9 THC, the intoxicating component of cannabis. The decarboxylated value is also calculated using a molecular mass conversion ratio that sums delta-9 THC and eighty-seven and seven tenths (87.7) percent of THC-acid ((delta-9 THC) + (0.877 * THCA)).

Decarboxylation. The removal or elimination of carboxyl group from a molecule or organic compound.

Delta-9 tetrahydrocannabinol or THC. Delta-9 THC is the primary psychoactive component of cannabis. For the purposes of this part, delta-9 THC and THC are interchangeable.[13]

Hemp. The plant species 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 total delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.

Marijuana. Or “marihuana”, as defined in the CSA, 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. The term “marihuana” does not include hemp, as defined in section 297A of the Agricultural Marketing Act of 1946, and 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 (7 U.S.C. 1639o). “Marihuana” means all cannabis that tests as having a [delta-9][14] THC concentration level of higher than 0.3 percent on a dry weight basis.[15]

Pursuant to the regulations, a Hemp Licensee must submit a sampling of the cannabis plant for testing no more than 30 days prior to the harvest. The sampling agent/lab must test the plant to determine if the plant meets acceptable hemp THC levels, i.e., the pre-harvest plant contains no more than 0.3% total delta-9 THC on a dry weight basis.[16] Standards of performance for detecting delta-9 THC concentration levels must use a methodology which accounts for the potential conversion of THCA (a non-psychoactive cannabinoid) found in hemp into delta-9 THC (the psychoactive cannabinoid).[17] Plants that meet the acceptable hemp THC levels may then enter the stream of commerce.[18] No further testing is required of the hemp product. No State or Indian tribe may prohibit the transportation or shipment of hemp lawfully produced under this law.[19]

MISSISSIPPI STATE MARIJUANA AND HEMP LAWS

Marijuana

Mississippi actually refers to its marijuana program as the Mississippi Medical Cannabis Program. This Program was created pursuant to the “Mississippi Medical Cannabis Act”, found at Miss. Code Ann. §41-137-1 et seq., which defines cannabis and cannabis products to exclude legal hemp as allowed by the 2018 Farm Bill. The implementing regulations for the MMCA are found in the Miss. Admin. Code, Title 15, Part 22, Subparts 1-11. The MMCA assigns DOR the responsibility for “licensing, inspection and oversight of medical cannabis dispensaries” (Miss. Code Ann. §41-137-7(4)), and states that the Mississippi Department of Health (“MDOH”) “shall have the ultimate authority for oversight of the administration of the medical cannabis program, and [] shall coordinate the activities of the MDOH and MDOR under the provisions of this chapter in order to best effectuate the purpose and intent of this chapter.” Miss. Code Ann. §41-137-7(1).

Miss. Code Ann. §41-137-35(22) states: “Any cannabis that contains less than three tenths percent (.3%) THC that was addressed by the 2018 Farm Bill, Public Law No. 115-334, shall be exempt from regulations applicable to medical cannabis establishments licensed under this chapter.” (Emphasis added).[20]

Relevant definitions under the MMCA are as follows:

“Cannabis” means all parts of the plant of the genus cannabis, the flower, the seeds thereof, the resin extracted from any part of the plant and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or its resin, including whole plant extracts. Such term shall not mean cannabis-derived drug products approved by the federal Food and Drug Administration under Section 505 of the Federal Food, Drug, and Cosmetic Act.[21]

“Cannabis products” means cannabis flower, concentrated cannabis, cannabis extracts and products that are infused with cannabis or an extract thereof and are intended for use or consumption by humans. The term includes, without limitation, edible cannabis products, beverages, topical products, ointments, oils, tinctures and suppositories that contain tetrahydrocannabinol (THC) and/or cannabidiol (CBD) except those products excluded from control under Sections 41-29-113 and 41-29-136.[22]

Relevant definitions under the MMCA’s implementing regulations are as follows:

Cannabis – The term “cannabis” means all parts of the plant of the genus cannabis, the flower, the seeds thereof, the resin extracted from any part of the plant and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or its resin, including whole plant extracts. Such term shall not mean 1) industrial hemp as defined in this Part per Miss. Code § 41-137- 25(22) nor 2) cannabis-derived products approved by the federal Food and Drug Administration under Section 505 of the Federal Food, Drug, and Cosmetic Act.[23]

Cannabis Products – The term “cannabis products” means concentrated cannabis, cannabis extracts, and products that are infused with cannabis or an extract thereof and are intended for use or consumption by humans. The term includes, without limitation, edible cannabis products, beverages, topical products, ointments, oils, tinctures and suppositories that contain tetrahydrocannabinol (THC) and/or cannabidiol (CBD) except those products excluded from control under Miss. Code §§ 41-25-113 and 41-25-136. The term medical cannabis products may also be used with the same meaning.[24]

Industrial Hemp – The term “industrial hemp” means a plant of the genus Cannabis and any part of the plant, whether growing or not, containing a delta-9 tetrahydrocannabinol (THC) concentration of no more than three-tenths of one 12 percent (0.3%) on a dry weight basis as set forth in the 2018 Farm Bill, Public Law No. 115-334.[25]

Both the MMCA and its implementing regulations make it clear that any hemp, as defined by the 2018 Farm Bill, or hemp products are exempt from the Mississippi Medical Cannabis Program. The MDOH and DOR do not regulate hemp as defined by the 2018 Farm Bill. Thus, they have no say over the administration of hemp.

Hemp

In the 2020 Regular Session, Senators introduced Senate Bill No. 2725 to authorize and legalize the cultivation, processing, and transportation of hemp, to be known as the Mississippi Hemp Cultivation Act. This Act was signed into law on June 29, 2020. The Act was to legalize the cultivation of hemp under a State plan to be created and implemented by the Commissioner of Agriculture and Commerce. Per the Commissioner, the program lacked funding and therefore was never implemented.[26] Because Mississippi failed to implement its own program, Mississippi defers to the USDA for licensing, regulation, oversight, and monitoring.[27]

While Mississippi has not implemented the Mississippi Hemp Cultivation Act (codified at Miss. Code Ann. §§69-25-201 through 69-25-223), the Act needs mentioning. To begin with, Section 1 of the Act provides that no other political subdivision of this State shall enact, adopt or enforce a rule, ordinance, order, resolution or other regulation that allows, prohibits or penalizes the cultivation, production or processing of hemp in this state.[28] Thus, the Act gives exclusive control over the Mississippi Hemp Program to the Mississippi Agriculture Commissioner.

Key definitions under the Act are as follows:

“Delta-9-tetrahydrocannabinol” means the sum of the percentage by weight of tetrahydrocannabinol acid multiplied by eight hundred seventy-seven thousandths (0.877) plus the percentage by weight of delta-9-tetrahydrocannabinol.[29]

“Hemp” means 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 three-tenths percent (0.3%) on a dry weight basis that is grown or processed under this article.[30]

“State plan” means the plan contemplated by 7 C.F.R. Part 990 Subpart B that a state must file for approval with the United States Secretary of Agriculture.[31]

Again, Mississippi never filed a plan as contemplated by 7 CFR Part 990 Subpart B; although, we recognize it is required if a State wants to regulate its own program.[32] The Act goes on to attempt to amend Miss. Code Ann. §41-29-113 (MS Controlled Substance Act) to exclude hemp from Schedule I in conformance with the federal law. The relevant statutes as amended are as follows:

Miss. Code Ann. §41-29-113 “Schedule I of controlled substances”:

Schedule I consists of the drugs and other substances, by whatever official name, common or usual name, chemical name, or brand name designated, that is listed in this section.

…

(d) Hallucinogenic substances. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture or preparation which contains any quantity of the following substances, their salts, isomers (whether optical, positional, or geometric) and salts of isomers, whenever the existence of these salts, isomers and salts of isomers is possible within the specific chemical designation:

…

(23)(A) Marijuana (Hemp as defined and regulated under Sections 69-25-201 through 69-25-221 and Cannabidiol contained in a legend drug product approved by the Federal Food and Drug Administration or obtained under Section 41-29-136 are exempt under Schedule I). [Emphasis added]

Miss. Code Ann. §41-29-139 “Prohibited acts; penalties”:

Transfer and possession with intent to transfer. Except as authorized by this article, it is unlawful for any person knowingly or intentionally:

(1) To sell, barter, transfer, manufacture, distribute, dispense or possess with intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled substance; or

(2) To create, sell, barter, transfer, distribute, dispense or possess with intent to create, sell, barter, transfer, distribute or dispense, a counterfeit substance. [Emphasis added].

However, there is a big divergence of Mississippi law from federal law. Mississippi illegally, in contravention of the direct mandate of Congress, alters the definition of hemp by changing the definition of delta-9 THC. The Mississippi definition is nonsensical and does not exist anywhere in federal law or otherwise. If one had to guess, one might opine that the drafters were using the decarboxylated testing methodology used by USDA to account for the potential conversion of THCA in hemp into delta-9 THC when testing to ensure a cannabis plant is in fact hemp.[33] Yet, the language is silent as to how product is weighed (dry, wet, ?) so the intent is uncertain. Even more curious, the statute does not include THCA or equate THCA to delta-9, it merely incorporates it into hemp through some skewed definition of delta-9. Regardless, tetrahydrocannabinolic acid (THCA) and delta-9 tetrahydrocannabinol (delta-9 THC) are two totally different cannabinoids, each with unique properties and effects. Delta-9 THC is defined in the USDA Domestic Hemp Production Program as “the primary psychoactive component of cannabis.”[34] Totally opposite of delta-9 THC, THCA is a non-psychoactive cannabinoid. The two cannabinoids differ in their molecular makeup, effects, legality, and usage.

THCA is legal on a federal level, and by extension in Mississippi through its federally regulated hemp program. In contrast to the clear and unambiguous language of the 2018 Farm Bill, the DEA, in a May 13, 2024 memorandum, suggests that cannabis-derived THCA does not meet the definition of hemp.[35] However, the 2018 Farm Bill requires biomass to be tested pre-harvest for total delta-9 THC, which already considers the percentage of THCA in pre-harvest material. THCA is present in raw and live cannabis. It is thought to have many therapeutic properties, including anti-inflammatory and neuro-protective effects without the “high” associated with marijuana.[36] THCA hemp is exempt from the CSA. THCA is not delta-9 THC. THCA does convert to delta-9 THC once it goes through decarboxylation. Delta-9 THC is widely used for both medical and recreational purposes. It remains a Schedule I narcotic and illegal on a federal level to the extent it is present in amounts over the 0.3% threshold.

As stated above, delta-9 THC concentration is the only determining factor to distinguish marijuana from hemp. By changing the definition of delta-9 THC, Mississippi has by extension changed the definition of hemp, which it is expressly prohibited from doing by the 2018 Farm Bill and its Conference Report. As to that change, the District Court for the Eastern District of Arkansas dealt with a nearly identical change as in Mississippi in Bio Gen LLC v. Sanders, et al., Case No. 4:23-cv-00718-BRW (E.D. Ark. 2023). In that case, the State of Arkansas passed a law which changed the definition of hemp to anything with a total delta-9 THC concentration of no more than 0.3% “of the hemp-derived cannabidiol”, which language is not in the federal definition. Bio Gen, [Dkt. #65, at 11]. The Court reviewed this change under the preemption doctrine. The federal preemption doctrine stems from the Constitution’s Supremacy Clause, which states that laws of the United States made under the Constitution are the “supreme law of the land.”[37] “[S]tate laws that interfere with, or are contrary to the laws of congress, made in pursuance of the constitution are invalid,” or preempted.[38] “Whether a particular federal statute preempts state law depends upon congressional purpose.”[39] There are generally three ways that federal law may preempt state law: where Congress has expressly stated its intent to prohibit state regulation in a particular area; where Congress has implicitly preempted state regulation via “occupation of a field;” and where state regulation conflict with federal law. Bio Gen, 4:23-cv-00718-BRW [Dkt. #65 at pp. 9-10]. Upon its analysis, the Court in Bio Gen granted a preliminary injunction against the State, finding it likely that the plaintiffs would prevail on their claims that the state statute was preempted by conflict and express preemption. Id. at 14-15.

As to the DEA and Mississippi’s reliance on the same, federal courts have ruled that their position regarding these cannabinoids (such as delta-8, THC-O, and under the May 13, 2024 memo mentioned above, THCA) is incorrect, even going so far as to explicitly refute a determination made by the Drug Enforcement Administration (“DEA”) in its August 21, 2020 Interim Final Rule (that 85 FR 51639) that “[a]ll synthetically derived tetrahydrocannabinols,” such as delta-8 THC and THC-O, “remain Schedule I controlled substances.” 85 FR 51641. Mississippi is currently the only state I am aware of that is targeting USDA licensed hemp processors, wholesale and retail, for THCA using the DEA’s May 13, 2024 memo and Mississippi’s skewed definition of delta-9. However, once these actions reach the federal level, they will likely be overturned as seen in the following cases below.

In AK Futures LLC v. Boyd Street Distro, LLC, 35 F.4th 682 (9th Cir. 2022), the Ninth Circuit Court of Appeals rejected the DEA’s position regarding synthetically derived tetrahydrocannabinols, and ruled that the Court did not need to consider the DEA’s interpretation of synthetically derived substances like delta-8 THC because the definition of hemp under the 2018 Farm Bill is “unambiguous and precludes a distinction based on manufacturing method.” 35 F.4^th at 692. The Court further held that the Farm Bill’s definition applies to “‘all’ such downstream products so long as they do not cross the 0.3 percent delta-9 THC threshold.” Id. The Court also ruled that “[c]lear statutory text overrides a contrary agency interpretation,” such as the DEA’s Interim Final Rule. Id. Thus, delta-8 THC products are not illegal so long as they do not pass the 0.3% delta-9 threshold. Similarly, just recently the Fourth Circuit came to the same conclusion about THC-O products. In Anderson v. Diamondback Inv. Grp., 23-1400 (4th Cir. Sep 04, 2024), Diamondback cited the DEA’s Interim Final Rule for its position that THC-O products taken by Anderson were illegal because they were synthetically derived. The Court disagreed based on the Ninth Circuit’s findings in AK Futures. The Fourth Circuit stated “[b]etween the DEA’s February 2023 letter and AK Futures, we think the Ninth Circuit’s interpretation of the 2018 Farm Act is the better of the two. And we’re free to make that determination ourselves, despite a contrary interpretation from the DEA, because we agree with the Ninth Circuit that [the 2018 Farm Bill] is unambiguous….” Anderson at p. 37. Both courts reiterate that “the only statutory metric for distinguishing controlled marijuana from legal hemp [under the CSA] is the delta-9 THC concentration level.” AK Futures, 35 F.4^th at 690; Anderson at p. 33.

Of note, the Anderson decision that THC-O meets the legal definition of hemp is the first such ruling involving a hemp-related case since the U.S. Supreme Court overturned what’s commonly referred to as the “Chevron Doctrine”. The Chevron Doctrine was based on the Supreme Court’s ruling in 1984 that a federal government agency’s interpretation of an ambiguous statute is “given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The Supreme Court recently overturned that doctrine in Loper Bright Enterprises vs. Raimondo, 144 S.Ct. 2244, 2262 (2024). Based on that Loper ruling, the Fourth Circuit stated in Anderson that “even if [the 2018 Farm Bill] were ambiguous, we needn’t defer to the agency’s interpretation.” Anderson at p. 37. Thus, the DEA’s position holds no weight, and hemp-derived products are legal so long as they meet the less than 0.3% delta-9 THC threshold.

Julie B. Mitchell is an equity shareholder at Hagwood and Tipton. Julie holds a Master’s Degree in Health Law (LL.M. Health Law). She served as chair to the Mississippi Bar, Health Law Section for 2018-2019, and is named as one of the Best Lawyers in America in Health Law and a Super Lawyer in health care law.

[1] Mississippi only recognizes medical marijuana. It is not currently a recreational state.

[2] 7 U.S.C. §1639o(1).

[3] We note that during the current U.S. legislative session, Rep. Mary Miller (Ill.) has proposed an amendment to H.R. 8467 in committee which would change the definition of hemp to mean “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 total tetrahydrocannabinol concentration (including tetrahydrocannabinolic acid) of not more than 0.3 percent on a dry weight basis.” This would remove the delta-9 designation and add THCA, thus completely changing the definition of hemp.

[4] FR, Vol. 86, No. 11, Tues., Jan. 19, 2021, pg. 5618-5619.

[5] Conf. Rep. at 738.

[6] AK Futures LLC v. Boyd Street Distro, LLC, 35 F.4th 682, 690 (9th Cir. 2022)

[7] 7 U.S.C. §1639p.

[8] 7 U.S.C. §1639q.

[9] https://www.ams.usda.gov. See also, https://mdac.ms.gov.

[10] 7 U.S.C. §1639p.

[11] 7 U.S.C. §1639o Note (a).

[12] 7 U.S.C. §1639o Note (b).

[13] The Federal Register provides that they use THC in law to mean delta-9 THC, with these terms used interchangeably throughout the regulations. Of note, there are multiple other cannabinoids that contain THC, including delta-8 THC, delta-10 THC, THCA, THCV, and THC-P to name a few. Still, for purposes of the federal regulations, they refer to only delta-9 THC and are silent as to all others.

[14] See fn. 12, supra.

[15] 7 CFR 990.1 (underline added).

[16] 7 CFR §990.24.

[17] 7 CFR §990.25(g).

[18] 7 CFR §990.26(d).

[19] 7 CFR §990.63.

[20] The MMCA itself correctly cites to the controlling law, i.e., the 2018 Farm Bill, which defines hemp by its delta-9 THC content on a dry weight basis.

[21] Miss. Code Ann. §41-137-3(d).

[22] Miss. Code Ann. §41-137-3(h).

[23] Miss. Admin. Code §35-I-1.2.20 (emphasis added). This definition erroneously refers to Miss. Code. Ann. §41-137-25(22) to reference “industrial hemp”, but we assume the correct, intended statute is §41-137-35(22) which as shown above references the 2018 Farm Bill.

[24] Miss. Admin. Code §35-I-1.2.26.

[25] Miss. Admin. Code §35-I-1.2.63 (emphasis added).

[26] https://www.mdac.ms.gov.

[27] Id.

[28] Miss. Code Ann. §69-25-201 “Short title; exclusivity.”

[29] Miss. Code § 69-25-203(d).

[30] Miss. Code § 69-25-203(g).

[31] Miss. Code § 69-25-203(k).

[32] Id.

[33] 7 CFR §990.1 “Definitions”, Decarboxylated.

[34] 7 CFR §990.1 “Definitions”, Delta-9 tetrahydrocannabinol or THC.

[35] See https://s3.documentcloud.org/documents/24688803/24-9472-porter-wright-thca-05032024-signed.pdf.