On November 2, 2023, the Georgia Court of Appeals reversed a lower Georgia court, which had held that edible products containing delta-8 THC or delta-10 THC were controlled substances under state law.  Although the Court of Appeals decision is not binding precedent, by reversing the lower court’s decision, the Court of Appeals, establishes that delta-8 and delta-10 products are arguably legal to sell, possess and consume in Georgia – for now at least.  Delta-9 THC, found in marijuana, remains illegal in Georgia, but the legality of delta-8 and delta-10, derived from hemp, has been less clear.

In the case at issue, Elements Distribution, Inc., a seller of delta-8 and delta-10 products, had its delta-8/10 products seized by Gwinnett County authorities based on a search warrant alleging that the products were controlled substances.  The District Attorney’s Office had returned the nonedible delta-8/10 products that were seized, conceding that those items were not controlled substances, but retained the edible products.  Elements Distribution sued to have the rest of its seized products returned.

Under Georgia law, neither “hemp” nor “hemp products” are considered controlled substances.  But, the definition of “hemp products” excludes food products with THC unless they are approved by the U.S. Food and Drug Administration.  The DA’s Office took the position that “even though delta-8-THC and delta-10-THC are not themselves controlled substances, edible products containing them are controlled substances” if not approved by the FDA, which none of the products at issue are.

The Court of Appeals was not persuaded, however, finding that edible delta-8 and delta-10 products could not be controlled substances if the products contain no controlled substances.  The court noted that Georgia law excludes THC from being considered a controlled substance “when found in hemp or hemp products,” meaning that edible products with THC from hemp would not be a controlled substance even if that product does not fall within the definition of hemp product by virtue of not being FDA-approved.

While the Court of Appeals’ holding in this case is significant, the case could be appealed to the Georgia Supreme Court.  In addition, the case is not binding on other courts because two of the judges concurred in judgment only.  Finally, the Court of Appeals made clear that its decision was based on the DA Office’s concession that delta-8 and delta-10 are legal, explaining that the court’s opinion does not address the “unsettled” question of whether delta-8/10 “synthetically derived from the cannabis plant” would be legal under Georgia law.

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