On the latest Memphis Flyer Podcast, Toby Sells and Chris McCoy talk about our cover story on the heated debate over cannabis laws in Tennessee. Every week, you can watch and listen to our writers discuss what’s in the latest issue of the Flyer our YouTube channel. One thing’s for sure: We have a good time doing it!
Cannabis is real in Tennessee.
Real business people have real dollars at stake. Real consumers are facing real consequences (like jail time) running afoul of real laws. Real law enforcement officials do real work to simultaneously follow state and federal rules that often conflict. All of it, for now, runs easily into real gray territory as all of the players navigate a foggy system for a product once only the punch line of bad Willie Nelson jokes.
Foggy? Take this statement, for example: Ice is legal in Tennessee; water is illegal.
This confusing analogy was the simplest way the director of the Tennessee Bureau of Investigation (TBI) could describe a serious cannabis law-and-evidence situation back in August. That situation may have the realest consequences.
Some in Tennessee have been wrongly thrown into a tangled thorn bush of law and science, state’s rights versus federal law. Customers here bought a cannabis product made legal by the legislature in 2023. But the product became illegal (chemically speaking) while in the customer’s possession or after it was taken by police. But neither questions of science nor jurisdiction were likely on that cannabis customer’s mind as they sat in a dingy jail cell for following what they thought was Tennessee law.
This real-world scenario has proven one of the hardest turns in Tennessee’s zigzag efforts to create and nurture a safe and legal cannabis marketplace here since 2018. With its hard-line refusal to make cannabis legal for recreational use (as 24 states have done with more likely to come) or to create a legal marketplace for medical use (as 38 states have done), Tennessee finds itself in that legal/scientific thorn bush, splitting hairs with customers’ freedom in the balance.
But Tennessee is certainly not alone as it tangles with hemp-derived THC products or their marketplace. The U.S. Congress created these — and their many issues — when it made hemp legal on the federal level. Some have said the intent was the plant itself, not the many “intoxicating” substances scientists have been able to pull from the .3 percent of THC hidden inside legal hemp plants.
To some lawmakers, these products and their marketplace were “unintentional” and they’re working to close the “loophole.” Other states, like Georgia, have moved to allow the products but ban big product categories, like smokeable flower and THCA. Of course, other states, like Colorado, have made all marijuana products legal but closely regulated and richly taxed. All of these things are happening while the U.S. Drug Enforcement Agency (DEA) is working through the process to remove cannabis from its list of the worst drugs.
That move would likely change things dramatically in Tennessee, from consideration of a medical cannabis program to outright recreational use across the state. Until then, Tennessee lawmakers, consumers, businesses, and law enforcement officials operate in gray areas that could go quickly black and white, depending on who’s asking.
That’s just what happened to George Worden in Middle Tennessee in 2019.
Unapologetic about “unreliability”
Worden, of Gallatin, bought nine grams of a hemp product (a plant material, likely flower) at a local cannabis store. Stopped by police, they tested his purchase. One test was negative, the other inconclusive. The local district attorney general sent Worden’s stuff off to the TBI.
Worden refused to admit wrongdoing or take a plea deal. He took the charge to court. There, the TBI’s report said his hemp contained more than 1 percent of delta-9 THC, and a TBI chemist testified in court that it was “marijuana.” In 2020, Worden was convicted, fined $1,500, and sentenced to 60 days in jail. He paid up and served his time. Still, the blemish on his criminal record remained.
In February of this year, Worden’s attorney got a shocking phone call from the Sumner County District Attorney General’s office. The TBI admitted its testing method may have raised the levels of THC in Worden’s legally purchased hemp. The DA there wanted to reverse Worden’s conviction.
“Considering this new information about the potential for unreliability in the TBI’s THC testing process at the time of the investigation, combined with the doubts raised in the trial proof regarding inconclusive field test results, the evidence in this case does not support the defendant’s conviction beyond a reasonable doubt,” wrote Sumner County Criminal Court Judge Dee David Gay in the order vacating Worden’s conviction.
Later in 2024, the TBI told the Tennessee District Attorneys General Conference about changes in their cannabis testing methods. The changes could overturn some convictions, like Worden’s, and suggested the DAs review some recent cannabis cases. With that, Worden’s conviction may have been the first case overturned with the new information. But it likely won’t be the last.
Yet you won’t hear TBI Director David Rausch admitting problems with his agency’s testing. Nor will you hear him give an apology to anyone — like Worden — who may have spent time behind bars because of TBI tests.
“I have no apologies because I don’t have anything that I need to apologize for,” Rausch told reporters in August as word about THC testing issues began to surface. “We owe no apologies based on what we do because there is no flaw in the effort that we have put forward.”
In fact, Rausch said, “I take offense” to some of the “inflammatory statements made” about his agency and its testing. He said, “Our testing is solid.” However, in that same news conference Mike Lyttle, the assistant director for the TBI’s Forensic Services Division, admitted, “We don’t have instruments in place right now to tell the difference between THCA and THC.” While the TBI is now spending around $600,000 for equipment to do the tests, they send about 1,000 THCA samples off to the Tennessee Department of Agriculture (TDA) for testing in those cases.
Rausch said his team only provides results and data. Anything beyond that — possession charges in Worden’s case — are completely up to DAs. Further, when the Tennessee General Assembly changed hemp laws last year, his office interpreted them in-house. With that, they changed from reporting the amounts of delta-9 and began reporting it all as total THC. Then in the news conference, Rausch sort of threw up his hands at the minutiae.
“Remember, federally, this plant is still illegal, right?” Rausch said. “It doesn’t matter if you call it hemp. You call it whatever you want to call it. Federally, it’s still an illegal product.”
It was clear Rausch wants that simple, hard line on cannabis back in Tennessee. He said the bureau’s position is that all cannabis should be illegal once more here, and said confidently that there’s a “legislative fix” for it. However, he said he does not lobby the legislature but would work with them to “clarify” the situation, noting that “making it illegal again would also be clarifying.”
“Not totally wiped out”
But making it illegal again would also wipe out a hemp-derived cannabis market in Tennessee roughly valued at more than $208 million over the last 12 months. In that time, the 6-percent tax on hemp-derived retail products has yielded $12.5 million in Tennessee tax revenues, according to Kelley Mathis Hess, CEO of the Tennessee Grower’s Coalition (TGC).
New rules from the TDA wouldn’t go that far. But they would ban THCA products, mostly smokeable, raw, hemp flower products. If those rules are implemented, “that segment of the industry is over,” Hess said, noting that the segment can count as much as 70 to 80 percent of an individual retailer’s sales.
“If the state does implement these rules, the people that lose are small businesses, consumers, and the state itself with the generated tax revenues,” she said. “Because it’s federally legal, I can still go online and order it from Florida, Texas, Oregon, New York — wherever it’s legal — and ship it here. A lot of people will probably just go back to the black market, get back on opioids, or something else.”
State lawmakers passed regulations on cannabis last year and put the TDA in charge of managing the program. This meant that agriculture officials — not lawmakers — have made decisions about the future of the cannabis market here, including the one that could possibly ban smokeable THCA products.
For now, TGC has filed its major grievances with the state on the new rules, hoping for some flexibility, some relief. If the state won’t budge and bans smokeable THCA, the group has two months to file a lawsuit.
However, Hess said she hopes it doesn’t come to that. The industry has been flexible, following three different sets of rules in a matter of eight months. But right now, the industry is “in limbo.”
“It’s new and we expect it to get bigger,” Hess said. “We just want the opportunity to mature, and continue, and not be totally wiped out.”
The Georgia experience
Georgia’s cannabis industry was dealt a massive blow from state lawmakers this year and, yes, it could be a sign of what’s to come in Tennessee.
The two states look similar when it comes to cannabis laws and approaches to the industry. Full recreational cannabis use is illegal in Georgia, like it is here. A limited number of patients can use medical cannabis oils there as here. However, state lawmakers in Georgia have allowed for certain cities — like Atlanta, Savannah, and Athens — to decriminalize cannabis possession for personal use. Meanwhile, Tennessee lawmakers overrode a Memphis City Council move to do the same here back in 2016.
Both states began to wrangle with a burgeoning cannabis industry that arose after the signing of the 2018 Farm Bill, which legalized hemp that contained small amounts of psychoactive substances. Industries in both states grew to see the familiar, green cannabis leaf appear in myriad shop windows. Industry groups arose in both, too, to lobby lawmakers and protect the business interests of cannabis growers and retailers.
Tennessee and Georgia also both decided to put cannabis regulation under the control of their departments of agriculture. The move has left some seemingly minute details in the hands of bureaucrats instead of lawmakers. In Tennessee, this is done even though those details can, maybe, make or break the bottom lines of businesses in a state that loves to say how business-friendly it is.
At the beginning of the year, Georgia lawmakers sought to regulate the state’s cannabis industry. The House, Senate, and governor approved the Georgia Hemp Farming Act, a set of regulations for age restrictions, labeling guidelines, testing protocols, licensing, and more everyday matters for so many industries.
But the Georgia law outright banned smokeable products and THCA. The legal reasons for that go back to the idea of THC amounts rising when these products are heated. The real reason, though, is likely because it gets you high and Jesus doesn’t like that very much (nor does the liquor lobby, conspiracy theories say). But that’s not how lawmakers said it.
“Here in Georgia, the safety of our residents is top priority, especially that of our children and young people,” said Governor Brian Kemp in a statement. “Consumable hemp products are dangerous to minors and unregulated hemp products are a danger to all Georgians.”
So the state enacted some commonsense regulations and then completely removed two whole product categories — not just products — from store shelves. Imagine the state government telling a bookstore they couldn’t carry nonfiction or magazines anymore. Why? Well, we just don’t like them and we’re protecting our community. That ban began on October 1st.
State officials said they’d give retailers a 90-day grace period to sell their remaining stock of now-illegal products. In the beginning, officials said they’d focus on educating the public. But a September statement from Georgia Agriculture Commissioner Tyler Harper gave a different vibe.
“The laws regarding under 21 sales and the sale of raw flower products are very straightforward and will be strictly enforced by our Law Enforcement and Hemp Program Divisions as well as other state and local law enforcement starting October 1st,” Harper said in a statement.
The Georgia Medical Cannabis Society said the new law was passed with “legislative sleight of hand” away from public comment and transparency. It’s also just bad for business.
“At its core, [the new law] presents a labyrinth of compliance hurdles that threaten to ensnare the unassuming farmer, processor, retailer, and consumer alike,” reads a LinkedIn post from Yolanda Bennett, operations manager for the society. “From fields of uncertainty for our farmers, ensnared by increased compliance costs and regulatory burdens, to processors caught in the crossfire of heightened testing and licensing expenses, the bill casts a long shadow of operational and financial strain.
“Retailers and dispensaries, once bustling hubs of community and healing, now face a constricted market, hemmed in by zoning restrictions and naming conventions that stifle their identity and outreach. At the end of this domino effect stand the consumers, bearing the brunt of increased product costs and reduced accessibility, their hands tied by the invisible chains of regulatory excess.”
The news had some Georgians scrambling. A number of Reddit posts in recent weeks have some saying they stocked up on their favorite flower or pre-rolls. Others said they planned to buy THCA products from online retailers in other states and have them drop-shipped through a Georgia retailer — a move that is totally legal, they said.
Some were going to just quit cannabis but would miss it. Some suggested other hemp-derived cannabinoids like delta-8 or delta-9. Others suggested getting a medical cannabis card, which could grant them access to buy low THC oil. These products contain less than 5 percent THC. Some were just going to call up their trusty illegal weed mane.
Again, this scenario could be a look into Tennessee’s crystal ball. Legalizing any intoxicating cannabis substance has been a bitter pill for state GOP lawmakers, no matter if cannabis supports agriculture and commerce, Tennessee’s official state motto.
But should it, like Georgia, ban these perception-altering products, it will hardly be alone. New laws in Virginia had some retailers saying they could wipe out 90 percent of the products on their shelves. In August, Missouri Gov. Mike Parson signed an executive order outlawing all intoxicating hemp products. But the Missouri Department of Health and Senior Services had to walk that one back, saying it would once again allow the sale of “psychoactive cannabis products” and instead it would focus on “misbranded” cannabis products.
Fed moves
Tennessee’s hard line on cannabis could end if the feds reclassify it, which would decriminalize it. That move is underway. While many here celebrate the light at the end of what’s has been a very long tunnel, GOP lawmakers are trying to dim those hopes.
The DEA announced this year would begin the process to remove cannabis from its list of the worst drugs. The public comment period in this move ended this summer. In those comments is a letter of opposition from several members of Congress, including U.S. Rep. David Kustoff (TN-8) and Tennessee Sen. Bill Hagerty. Among other things, the letter says the DEA was “not properly consulted” on the move, which suggests they were pushed into the change (allegedly by the Biden administration, though it’s never mentioned directly).
The letter says not enough is yet known about marijuana to loosen its laws. The lawmakers point to several studies claiming to prove that the drug raises rates of schizophrenia in young men, psychosis, anxiety, cognitive failures, adverse respiratory events, cancer, cardiovascular outcomes, and gastrointestinal disorders.
Sexual dysfunction was twice as high in men who used marijuana, they said of another study. They said marijuana use is responsible for more car crashes, violent behavior, alcohol use among veterans suffering PTSD, and a spike in emergency room visits, especially by young Black men.
“It is clear that this proposed rule was not properly researched, circumvented the DEA, and is merely responding to the popularity of marijuana and not the actual science,” reads the letter.
Yet another GOP-led move would ban all hemp-derived products — all of them — from the current Farm Bill, not waiting on any move from the DEA. This move would close the “loophole” that was “unintentionally” created in the 2018 Farm Bill that allowed hemp to be legalized, said U.S. Rep. John Rose (TN-6).
“Hemp is a product that requires and demands the correct guidelines, and if we do not provide these guidelines, we are threatening the safety of Americans,” Rose said during a House Committee on Agriculture meeting in May. “This amendment draws the much-needed line between the naturally occurring plant and adjacent particles, and the enhancing synthetic additives combined with the plant and placed on store shelves.”
Not all Republicans want to ban the products, however. During that same meeting, U.S. Rep. Jim Baird (IN-4) said he’d vote no on the measure because “farmers around the country have invested their time and treasure over the last six years to develop a domestic supply chain of hemp and hemp products.”
The Senate version of the Farm Bill has not yet been released, though Democrats and Republicans alike have floated ideas to regulate the “intoxicating” hemp market, estimated to be worth around $30 billion in the U.S. last year.
So, what’s a Tennessee cannabis consumer to do?
“Be smart consumers,” said TBI director David Rausch. But also, “If you want marijuana, go buy it.” As far as legal hemp products purchased legally, Rausch advised consumers to:
1. Keep your receipt from the store. That will go a long way to convince a cop during a pullover stop that the cannabis flower you bought is supposed to be legal.
2. As you drive or transport it home, keep your product in its original packaging, unopened. If you’re carrying legal stuff in a baggie in which police are used to seeing illegal stuff, you could run into a legal challenge.
3. As you’re driving, keep everything in your front seat, in plain view of an officer. This way it doesn’t look like you’re hiding anything.
4. Remember there is a chance of buying a product marked legal by a store, that may turn out to be illegal. You might not know until the police, the TBI, or the TDA test it.
Smokeable THCA and CBD products are wildly popular in Tennessee, according to industry advocates, but they remain at risk of disappearing from store shelves under new state rules.
State lawmakers passed new laws last year to regulate the growing cannabis industry in Tennessee. For example, cannabis products were moved behind shelves of stores that aren’t 21 and up. A new 6-percent tax on cannabis products was levied, too. A single serving of a cannabis product cannot exceed a dosage of 25 milligrams in the state.
The new law also made the Tennessee Department of Agriculture (TDA) responsible for regulating the cannabis industry here. Late last year, the department issued new rules for cannabis producers and products.
The department updated those rules at the beginning of this month after a public comment period. Tennessee Growers Coalition (TGC) executive director Kelley Mathis Hess said nearly 19,000 comments were submitted to the agency. But officials must not have listened, she said.
The new rules still include new THC standards for THCA and CBD flower. New limits could see those products removed completely. The new rules would also allow police to arrest manufacturers, retailers, and consumers for selling or possessing these smokable products, according to Cultivate Tennessee, another hemp advocacy group.
The new state rules redefine THC to include a product’s total THC. This includes a lot of THCA — the cannabinoid that produces a “high” — smokeable products.
“They’re trying to redefine it by combining two different cannabinoids,” Hess said, “two different things when it should just be Delta 9, and Delta 9 only. They’re trying to put a limit on [THCA] but the limit would, basically, ban a lot of it.”
Hess said these products are probably the most popular products on the market right now. Many small businesses have built their business around sales of these products, she said. Removing them could prove fatal to them.
TGC and Cultivate Tennessee have promised to fight.
“We will fight to keep smokable hemp products, such as THCA flower, concentrates, and vapes legal in Tennessee,” Cultivate Tennessee says on its website. “We will defend against the TDA attempting to rewrite laws through the rules. We assert that the TDA rules are potentially illegal and unconstitutional.”
The new rules, though, are considered “emergency rules,” meaning they are not the final rules. So, they’re not set in stone. Hess said she hopes agency officials will reconsider the new rules for cannabis flower. If they don’t, TGC will file a lawsuit for legal clarification, she said.
These particular products were likely targeted by the agency, Hess said, for one big open secret.
“These products get you high,” she said. “That’s not a secret anymore. That’s the whole reason [Rep. William Lamberth (R-Portland)] and [Sen. Richard Briggs (R-Knoxville)] brought a bill, because it gets you high and they wanted it regulated.”
The new rules won’t affect edible products, like gummies, Hess said. Those products are made with cannabis oils that can be measured, fine-tuned all along the production process, and remain stable on the shelf. Cannabinoid profiles in flower products, however, can change.
No state official has made any public comment on the new rules. However, when the Biden administration announced new rules not approved by Congress in a different matter, Tennessee Attorney General Jonathan Skrmetti led a multi-state revolt against them (and temporarily won). The U.S. Department of Education added “gender identity” to Title IX. Skrmetti said only Congress could change rules and that the government agency “has no authority to let boys into girls’ locker rooms.”
The birthplace of blues, barbecue capital of the world, and home of rock-and-roll, Memphis is a uniquely vibrant city famous for constantly innovating. Recently, it embraced one of the biggest trends sweeping the nation: THC drinks, a buzzy alternative to alcohol that offers a new way to party.
Because they’re made with hemp-derived cannabinoids, THC drinks are legal for adults throughout the country to enjoy. One of the most popular brands in the nation, Crescent 9 THC Seltzer, is now available at many Memphis locations.
Memphis and Cannabis
Both medical marijuana and recreational marijuana are fully illegal in Memphis. This is something of a surprise considering the fact that, according to a 2024 Vanderbilt Poll, 60 percent of Tennesseans support legalizing marijuana.
Although Tennesseans lack access to marijuana, they do have access to hemp thanks to various bills passed by the state legislature. In 2019, SB357 legalized hemp products, including those containing a psychoactive quantity of THC. In 2023, HB403 further regulated and supported Tennessee’s hemp industry.
Hemp products are federally legal if they contain hemp-derived cannabinoids and less than 0.3 percent Delta-9 THC. These products must also meet Tennessee’s safety and potency requirements to be sold in Memphis. Despite these restrictions, the hemp industry is flourishing.
Hemp-derived THC beverages have become especially popular. One big reason for their success is the fact that many people have given up alcohol in favor of cannabis; indeed, the popularity of cannabis may soon eclipse that of alcohol. A recent study found that by 2022, more people were using cannabis daily than were using alcohol daily.
What is Crescent 9 THC Seltzer?
Flavored with real fruit and infused with a satisfying dose of cannabis, Crescent 9 THC Seltzer is a deliciously refreshing alternative to alcohol. Unlike edibles, Crescent 9 THC Seltzer takes effect in about 15 to 30 minutes, about as fast as alcohol so that you can enjoy Crescent 9 socially.
There are four flavors of Crescent 9 THC Seltzer.
● Ginger Lemonade. Sweet and tart with 5 mg of THC and 4 mg of CBD.
● Tropical. Citrusy and sweet with 6 mg of THC, 3 mg of CBD, and a splash of caffeine.
● Sour Watermelon. Nostalgically sweet and sour with 10 mg of THC.
● Strawberry Lemonade. Deliciously refreshing with a potent 50 mg of THC.
Whether you’re just curious about cannabis or an experienced consumer, there’s a perfect Crescent 9 for you.
Where to Find Crescent 9 THC Seltzer
Crescent 9 THC Seltzer is available at stores and music venues throughout Memphis and surrounding areas. Below are some of the most popular locations to enjoy a cold can on-site or pick up a pack of Crescent 9 to unwind at home.
Find Crescent 9 at:
● Minglewood Hall
● Bud & Hal’s Liquors
● Buster’s Liquors & Wines
● Ceasar’s Wine & Liquor
● Gaslight Liquor Shoppe
● High Point Grocery
● Joe’s Wines & Liquor
● Kimbrough Ine Wine & Spirits
● Kirby Wines & Liquors
● Liquor Barn
● Southwind Liquor
● Wayne’s Wine & Liquor
● Yorkshire Liquors
● Bartlett Wine & Spirits
● Corks Wine and Spirits
● Germantown Village Wine and Liquor
● Hemp2oh
● Mad Hatters Tea Room & Gifts
● Natalie’s Liquor Warehouse
● Vintage By Corks
● Lake District Wine & Liquor
But you don’t have to leave your home to order Crescent 9. Adults across the country can order Crescent 9 THC Seltzer online at crescentcanna.com. You must be 21 or older to buy THC-
infused hemp products.
This article is sponsored by the Crescent 9 THC Seltzers.
Tennessee Republicans cannot stand the federal government telling them what to do — especially when a Democrat’s in the White House — but they do love telling Tennessee’s biggest cities what to do.
Republicans cry “overreach,” in general, when the feds “impose” rules that “overrule the will of the people of Tennessee.” (All of those quoted words came from just one statement on abortion from Tennessee Attorney General Jonathan Skrmetti, who yells “overreach!” the loudest.) But they call it “preemption” when they do it to Memphis and Nashville — their favorite targets — leaving big-city locals to bemoan that same overreach.
When punching up at the federal government, Tennessee conservatives send angry letters to the president lamenting rules they have to follow to get big “seductive” tax dollars. But they don’t often win much in this process.
When they punch down at cities, the power struggle really comes down to rural conservatives exerting whatever influence they have to temper (squash) the sometimes “woke” ideas of urban progressives. They have a lot of power to do this, as state law does, usually, preempt local law.
So, Republicans do what they want in the Tennessee General Assembly and say, “See you in court,” because cities don’t typically give up their authority without a legal fist fight. (This happens so much state Democrats say Republicans pass lawsuits, not laws.)
But cities lose these fights often. Some of that is thanks to the powerful state AG’s office, who gets in the ring for state conservatives. That office has even more punching power with a brand-new $2.25 million, 10-member unit. It force-feeds conservative priorities in Tennessee cities and blocks D.C.’s liberal agenda.
Here’s an example of this double-edged subversion: Skrmetti, the Republican AG, cried “overreach” when a 2022 USDA rule said LGTBQ kids had to have access to lunch at school. But when Memphis and Nashville tried to decriminalize cannabis in 2016, a state Republican said, “You just can’t have cities creating their own criminal code, willy-nilly.”
Same coin. Two sides. Yes, state law rules most times, but the premise of the argument is the same. State citizens and city locals know what’s best for them and pick their leaders accordingly. Then, an outsider who, maybe, doesn’t share their values, swoops in to make locals comply with theirs. It’s like, “Hi, you don’t know me but you’re doing it wrong and are going to do it my way.”
In this game, Memphis has been on the ropes at the legislature this year. State Republicans want to take away some of the power from the Shelby County district attorney. They want to remove a Memphis City Council decision on when Memphis Police Department (MPD) officers make traffic stops. They also wanted to dilute local control of the Memphis-Shelby County School (MSCS) board with members appointed by the governor. But they decided against it. Details on many of these and some from the past are below.
Meanwhile, some Republican lawmakers have looked up, wondering if they could really cut ties with the federal government. They took a serious, hard look at giving up $1 billion in federal education funding for state schools. They wanted to do it “the Tennessee way.” Left to guess what that meant, many concluded they hoped to eschew national discrimination protections for LGBTQ students.
This year, a state Republican hopes to establish state sovereignty. He wants to draw a clear line between state and fed powers and to install a committee to watch that line. It’s not a new idea, but it’s always had “don’t tread on me” vibes.
The road from Memphis City Hall, to the State Capitol, to Congress and the White House is littered with complaints (usually court papers) about political subversion. All the hollering and legal fights along the way have to leave voters wondering, who’s got the power?
District Attorney Power Battle
A legal battle over who has the power to decide on some death penalty cases has been waged since Republicans passed a bill here last year.
That bill stripped local control of post-conviction proceedings from local district attorneys and gave it to Skrmetti, the state AG. In Memphis, the bill seemed largely aimed at Shelby County District Attorney Steve Mulroy, with some concerned he may be lenient for those facing the death penalty.
“This sudden move appears to be a response to the choices of voters in both Davidson County and Shelby County, who elected prosecutors to support more restorative and less punitive policies,” Tennesseans for Alternatives to the Death Penalty said at the time.
Larry McKay, who received two death sentences for the murders of two store clerks in Shelby County in 1981, requested a court review of previously unexamined evidence in his case. Despite the new law, McKay’s attorney sought to disqualify Skremtti’s office from reviewing the case because he was not elected.
His attorney argued the new law infringes on the responsibilities of local district attorneys. The big changes made in the legislation also violated the state constitution, the attorney said.
Mulroy agreed.
“The newly enacted statute is an unconstitutional effort to divest and diminish the authority granted to Tennessee’s district attorneys general by the Tennessee Constitution,” Mulroy said at the time. “The new statute violates the voting rights of such voters because it strips material discretion from district attorneys, who are elected by the qualified voters of the judicial district.”
But state attorneys did not agree.
“The General Assembly was entitled to take that statuary power away from the district attorneys and give it to the Attorney General in capital cases,” reads the court document. “They have done just that and their mandate must be followed.”
But in July Shelby County Judge Paula Skahan ruled the Republican legislation did violate the state constitution. New arguments on the case were heard by the Tennessee Criminal Court of Appeals earlier this month. No ruling was issued as of press time. However, an appeal of that ruling seems inevitable, likely pushing the case to the Tennessee Supreme Court.
Pretextual Stops
State Republicans are actively trying to undermine a unanimous decision of the Memphis City Council to stop police from pulling over motorists for minor things like a broken taillight, a loose bumper, and more.
This council move came three months after MPD officers beat and killed Tyre Nichols, who was stopped for a minor traffic infraction. The local law is called the Driving Equality Act in Honor of Tyre Nichols.
Council members said police time could be better spent, that the stops expose more people to the criminal justice system, and, as in the Nichols’ case, could be dangerous. The stops also disproportionately affect Black people, who make up about 64 percent of Memphis’ population but receive 74 percent of its traffic tickets, according to Decarcerate Memphis.
The council’s decision made national headlines. But it found no favor with Republican lawmakers.
Rep. John Gillespie (R-Bartlett) introduced a controversial bill this year that would end that practice and reestablish state control over local decisions on criminal justice.
“We’re simply saying a state law that’s been on the books for decades is what we’re going by here,” Gillespie told Tennessee Lookout earlier this month. “And if there are people that have problems with what state law is, then maybe they should change state law instead of enacting local ordinances that are in conflict with state law.”
He initially cooled on the matter, promising to pause his bill for further review after Nichols’ parents spoke at a press conference.
“I am just appalled by what Republicans are trying to do in this state,” Nichols’ father, Rodney Wells, said at the event.
Gillespie promised Nichols’ family he’d hold the bill but surprised many earlier this month when he brought it to the House floor for a vote, which it won. Some said Gillespie acted in bad faith. State Rep. Justin Pearson (D-Memphis) said he straight-up lied to Nichols’ family and subverted local power to boot.
“You, as a person who lives in Shelby County, seek to undo the will of the people of Memphis and Shelby County,” Pearson said on the House floor. “The Wells family spoke with him briefly; he told them this bill wouldn’t come up until probably next Thursday.”
The Senate approved the bill last Thursday. It now heads to Gov. Lee for signature.
MSCS School Board
State Republicans want to control schools here, too.
Rep. Mark White (R-Memphis), chair of the House Education Committee, filed a bill earlier this year that would add six governor-appointed members (read: more Republican influence) to the MSCS board. When he filed the legislation, he said he was unimpressed with the slate of those vying for the district’s superintendent job and concerned about students falling behind state standards on reading and math.
“I’m very concerned about the district’s direction, and I just can’t sit back any longer,” White told Chalkbeat Tennessee. “I think we’re at a critical juncture.”
However, MSCS board chair Althea Greene said at the time that White’s proposal was unnecessary.
“We may have had some challenges, but more interference from the General Assembly is not warranted at this time,” she said. “We have to stop experimenting with our children.”
Since then, the MSCS board chose Marie Feagins as the district’s superintendent and she got to work early, before her contract was supposed to start. Also, White paused his bill earlier this month to give board members a chance to submit an improvement plan. White said the plan should show how they’ll improve on literacy, truancy, graduation rates, teacher recruitment, underutilized school buildings, and a backlog of building maintenance needs, among other things, according to Chalkbeat.
While it’s the newest move in state “overreach” into schools here, it’s hardly the first. State Republicans once seized dozens of schools in Memphis and Nashville as laboratories for what they called “Achievement School Districts.” After more than a decade, these schools only angered locals, showed abysmal student performance, and now seem to be on their way out.
Cannabis
For six weeks back in 2016, Memphis City Council members debated a move that would have decriminalized possession of small amounts of cannabis in the city.
Hundreds were (and are) arrested each year on simple possession charges, and most of those arrested were (and are) Black. Council members didn’t want cannabis legalization; they wanted to steer folks away from the criminal justice system. They hoped to keep them out of jail and avoid a criminal record, which could hurt their chances at housing, employment, and more.
The city council — even though some had reservations about it — said yes to this. So did the Nashville Metropolitan Council. State Republicans said no.
Upon their return to the Capitol in 2017, they got to work ensuring their control over local decisions on the matter. A bill to strip this control easily won support in the legislature and was signed by then-Gov. Bill Haslam, who said he acted on the will of state lawmakers.
“You just can’t have cities creating their own criminal code, willy-nilly,” Rep. William Lamberth (R-Cottontown), the bill’s House sponsor, told The Tennessean at the time.
Then-Tennessee Attorney General Herbert Slatery issued an opinion that said, basically, cities can’t make laws that preempt state law. With that, Memphis resumed regular enforcement of cannabis laws.
Ranked Choice Voting
In two elections — 2008 and 2018 — Memphians chose how they wanted to pick their politicians, but they never got a chance to use it. State Republicans said no.
Ranked Choice Voting (RCV) would have allowed voters here to rank candidates on a ballot, doing away with the need for run-off elections that always see lower voter turnout. It was new and different but voters here “decided, over and over again, to give it a try,” reads a Commercial Appeal op-ed from 2022 by Mark Luttrell, former Shelby County mayor, and Erika Sugarmon, now a Shelby County commissioner.
However, state Republicans then-Sen. Brian Kelsey (R-Germantown) and Rep. Nathan Vaughan (R-Collierville) filed a bill to upend the voters’ decision for good with a bill to end RCV in Tennessee. Kelsey said it was about voter clarity. Opponents said it was about more.
“If the bill passes, it will disrespect Memphis voters, make a mockery of local control,” Luttrell and Sugarmon said in the op-ed.
In the end, the state won. The bill passed and RCV was banned, with added support and sponsorship of Memphis Democrats Rep. Joe Towns Jr. and the late Rep. Barbara Cooper.
State Sovereignty
“So, you hoe in your little garden and stay out of our garden,” said Rep. Bud Hulsey (R-Kingsport).
He was explaining to the House Public Service Committee last year how the country’s founders designed the separation of powers between the state and the federal governments, how it was supposed to work, anyway.
But federal government agencies — not elected officials — issue rules pushed on to “we, the people,” he said. They tear families apart. They split marriages. They end lifelong friendships, he said. They bring bankruptcy and suicide. He gave no more details than that. But he was sick of it and said the bill he brought would fix it.
When some Republicans here aren’t busy in committee or court, rending control from local governments, they like to think about state sovereignty. They want to defend Tennessee from the feds, especially when a Democrat is in the White House. They want to know what the exact rules are and to tell D.C. “don’t tread on me.”
Since at least 1995, bills like these have been filed here and there in the state legislature. There’s a new one pending now. In them, “sovereignty” sometimes sounds like a preamble to “secession.”
Hulsey’s bill didn’t go that far. He really wanted to set out a way to nullify D.C. rules he didn’t like. Lee’s office was against it, though. Senate Republicans were, too. The idea failed to even get a review in the Republican-packed Senate State and Local Government Committee. Conservatives worried “nullification” could also nullify big federal tax dollars.
That 1995 bill demanded, “The federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of its constitutionally delegated powers.” Another Republican sovereignty bill later would have voided the powers of any representative of the United Nations once they entered the state.
One in 2014 (that was signed by the governor) simply expressed the state’s sovereignty to set educational standards. A 2016 bill said the feds “seduce” states to go along with their new rules with federal funds they treat as grants, not as tax funds for the state. Another in 2013 would have formed a committee to see what financial and legal troubles could be in store for Tennessee if it scaled back or quit the “state’s participation in the various federal programs.”
Ten years later, this idea is back. The “Tennessee State Sovereignty Act of 2024” would form a 10-person committee to watch and see if any federal rule violates the Tennessee State Constitution. If it does, “it is the duty of both the residents of this state and the General Assembly to resist.”
Now, if that don’t say “don’t tread on me” …
In the Senate, the bill was deferred until near the end of session (usually meaning they’ll get to it if they can). A House review of the idea was slated for this week, after press time.
Education Funding
Sovereignty bills rarely go anywhere but in talking points for reelection campaigns.
However, last year high-ranking Republicans took state sovereignty a step beyond rattling a saber. They announced a bold plan to have a serious look at if and how Tennessee could cut ties with the feds and their $1 billion in education funding. If it did, Tennessee would have been the first state in history to decline such funds.
“We as a state can lead the nation once again in telling the federal government that they can keep their money and we’ll just do things the Tennessee way,” House Speaker Rep. Cameron Sexton said at an event in February last year.
He didn’t outline what the “Tennessee way” entailed, though he complained about testing mandates and strings attached to funding. Many said the big federal string Republicans wanted to cut was the one attached to Title IX mandates. Title IX prohibits discrimination based on sex in education programs and activities that get federal money. The Biden administration has promised an update to these that could strengthen protections for LGTBQ students.
Tennessee has passed more anti-LGBTQ laws than any other state, according to the Human Rights Campaign. The week of March 4th alone, 18 such bills were before state lawmakers and targeted diversity, equity, and inclusion programs; made it easier to ban books; and attempted to legalize discrimination based on sexual orientation or gender identity.
State Republicans have passed bills to mandate transgender students only play on sports teams that match their gender at birth. They have mandated which bathrooms trans people have to use (a decision struck down by a federal judge). They’ve allowed teachers to go unpunished if they refuse to use pronouns that students identify with. They’ve wanted certain books with LGBTQ themes banned at school. They’ve wanted LGBTQ, especially gender identity, issues banned from discussion in sex-ed classes. This list goes on and on.
However, the precise motive for looking into cutting those federal education dollars was never stated. Some said it was always good to review the relationship between nation and state. In the end, Republicans spent a lot of time and money to research the idea but set it aside. They took the federal money and the strings attached anyway. But taking it so seriously was maybe that “don’t tread on me snake” just shaking its rattle.
“Deep in my Soul”
Separation of powers is a doubled-edge sword. It’s that cartoon drawing of a big fish eating a small fish that is getting eaten by the even bigger fish. It’s a “layer cake” form of federalism.
Call it what you will, but it’s clear locals want to make their own decisions. For Hulsey, the Republican talking about who tends whose garden, the idea runs deep.
“I stood up on that House floor over there a few weeks ago and we raised our hand, and we swore to 7 million people in this state, we swore not that we would rake in all the federal money we could get,” Hulsey told committee members. “We swore that we would always defend the inalienable rights of Tennessee people by defending and upholding the Constitution of the United States and the constitution of the state of Tennessee.
“We should not be for sale. I want to tell you that deep in my soul, I have a conviction that is deep-seated. I believe that if state legislatures in this country do not stand up and hold the federal government to obey the Constitution of the United States, we could very easily lose this republic.”
Cannabis flower products could disappear from store shelves in Tennessee next year thanks to new state rules, a threat to businesses and consumers, advocates say.
State lawmakers passed new laws this year to regulate the growing cannabis industry in Tennessee. Some of those rules went into effect in July. For example, cannabis products are moved behind shelves of stores that aren’t 21 and up. A new, 6-percent tax on cannabis products was levied, too.
The new law also made the Tennessee Department of Agriculture (TDA) responsible for regulating the cannabis industry here. On Monday, the department issued new rules for cannabis producers and products.
They immediately drew the ire from the Tennessee Growers Coalition (TGC), the advocacy and lobby agency for the state’s cannabis industry. The group is now organizing its members to fight the new rules.
TGC’s executive director Kelley Hess said the new law focused only on the Delta 9 cannabinoid and said that’s how hemp is defined on the federal level. But state agriculture officials added new THC standards for THCA and CBD flower. This could pinch producers and retailers as these products are “at least 70 percent of the market right now” and “what people have been building their businesses around.”
The new rules won’t affect edible products, like gummies, she said. Those products are made with cannabis oils that can be measured, fine-tuned all along the production process, and remain stable on the shelf. Cannabinoid profiles in flower products, however, can change.
“The organic, raw flower is what’s really at jeopardy,” Hess said. “[The TDA is] just calculating the cannabinoids differently than what we’ve been calculating them for the last five years.”
The TDA has overseen the state’s hemp industry since 2015. However, that oversight began as an industrial hemp program, when the crop was most likely intended to make rope, concrete, and those hippy hemp pullovers.
That changed with the federal Farm Bill and the discovery of cannabinoids that could be pulled from hemp. The word “industrial” was all but phased out and TDA teams now travel the state testing hemp plants to ensure the THC levels in them are below a federally mandated .3 percent.
In the past, that’s where the department left it. Whatever happened to that legal hemp and its cannabinoids afterward was up to the farmer and the market. The new law now mandates TDA to manage cannabis and an edible foods program (like gummies) from the plant all the way to the shelf. The new rules issued Monday basically outline the structure of that program.
Hess said her group and producers across the state offered ideas for state officials for the program but they did not listen. The new THC standard, she said, is a “misinterpretation of the bill” and warned agirculture officials that “you cannot do that.” But “they still did not take that seriously.”
Hemp growers already have to meet those strict state guidelines in the field, she said. The move cut the number of producers from around 4,000 in the state to around 400. Hess said the TDA is now trying to “copy/paste” similar rules to the product side.
“It’s another standard that these growers and producers have to meet, which is completely unrealistic and unattainable,” Hess said. “So, they can’t do it. Then, all of these products that are on the shelf now will become illegal and noncompliant. So, law enforcement can come with criminal charges.
A public hearing on the matter is scheduled for February. That hearing comes during the next session of the Tennessee General Assembly.
A Tennessee company with ties to Memphis launched a new cannabis product this summer to help consumers “make better bad decisions.”
Tipsy Tabs appeared in stores throughout Memphis around August. Locals may have noticed colorful signs in liquor or cannabis shops inviting them to “bite into the party” for an experience that ”feels like a cocktail in a tablet.”
The sweet, colorful, little tablets (about the size of dime) pack 25 milligrams of hemp-derived THC apiece. For this, the company suggests consumers start by taking half a tablet to start and add another half every half hour until they reach their desired euphoric effect.
Tipsy Tabs were created as a sublingual edible, meaning they are meant to dissolve under the tongue. This method helps with the fast onset of effects, within 10 minutes the company says. But the packaging is quick to note you take a Tab however you prefer. “Bite me,” it reads. “Chew me. Suck me.”
With Tipsy Tabs, the company hopes to tap into a growing (but slow) movement away from alcohol consumption and the rise of “California sober,” indulging in cannabis but not in booze.
The product comes from Volunteer Botanicals, based in Christiana, Tennessee, just outside Murfreesboro. But company co-founder Jason Pickle and Matt Hale, vice president of retail sales for the company, are both originally from Germantown. Volunteer Botanicals started about six years ago, Hale said, specializing in converting hemp oils into a pharmaceutical-grade powder.
Hale told us more about Tipsy Tabs in a recent interview. — Toby Sells
Memphis Flyer: Tell me about Tipsy Tabs.
Matt Hale: The way we look at this thing is [most] of the cannabis products on the market are, “How high can we get you? How blasted can we get you?” In the grand scheme of things, that’s a small portion of the country or that industry.
You’ve got all these functional, working parents — yoga moms, and people like that — that don’t want to get blasted. They’re scared of a lot of these products. So, what we saw the opportunity to do was, “let’s do this on a metered format.”
If you think about a gummy, a gummy filled with sugar, it melts. It’s inconsistent. I hear it all the time: “I don’t really want to eat a gummy because one time I eat it and I don’t feel anything and then the next time I eat it and I’m blasted.” With what we do, with every one of these, you feel the same thing every time and that’s what this industry is missing.
So, just like a cocktail, [consumers can] figure out their sweet spot. It’s not guessing every time. It’s like, “I’m going to my kid’s T-ball game. So, I’m going to pop half of one of these and I’m just going to relax.” Or, if you want to go out and party, eat two or three of them and — just like a cocktail — the more you drink, the more you feel.
How long has Tipsy Tabs been on the market?
We launched the product a little over a month ago. It’s blowing up! It’s just a great product.
Where can you get Tipsy Tabs?
We are in about 15 stores in Memphis and growing everyday. We’re in discussions with a big distributor out of Nashville. We’re in the Carolinas. We’re in Texas. We’re in Georgia. And it’s just gong to keep growing.
Anything you want to add?
A lot of people are intimidated by [cannabis products]. Tipsy Tabs gives them a chance to to dip their feet in the water and actually try something without taking it too far.
Last year, President Joe Biden promised to reevaluate cannabis’ placement on Schedule I. On Thursday, two frustrated Congressmen wanted to know what is taking so long.
Schedule I is the federal government’s classification for some of the worst drugs like meth and heroin. These drugs are highly addictive and have no medical use, according to the government.
Biden promised cannabis reform in a statement in October. It outlined three steps his adminstration would take to end what he called the government’s “failed approach” on cannabis so far.
With a stroke of a pen, he pardoned all federal offenses of simple possession and urged governors to do the same. (Tennessee Governor Bill Lee did not even consider making these pardons here.) Biden’s third step was to ask the Secretary of Health and Human Services (HHS) and the U.S. Attorney General to “expeditiously” review how cannabis is scheduled under federal law.
“Federal law currently classifies marijuana in Schedule I of the Controlled Substances Act, the classification meant for the most dangerous substances,” Biden wrote in the statement. “This is the same schedule as for heroin and LSD, and even higher than the classification of fentanyl and methamphetamine — the drugs that are driving our overdose epidemic.”
No word has yet emerged from the adminstration on the re-classification of cannabis. On Thursday, U.S. Rep. Steve Cohen and U.S. Rep. Matt Gaetz grilled Drug Enforcement Agency (DEA) Administrator Anne Milgram for details during a meeting of the House Judiciary Crime and Federal Government Surveillance Subcommittee. They got very few.
Milgram said her agency cannot move on the matter without word from HHS. She said DEA has not heard anything and had not even heard of a timeline for when HHS might send word.
“Well, that’s unsettling, isn’t it?” Gaetz asked Milgram. “When you don’t even know a timeline, it doesn’t really make it seem like something’s front of mind.”
Gaetz asked Milgram to encourage HHS for a timeline on the re-classification of cannabis and she agreed she would.
Should HHS recommend removing cannabis from Schedule I, that would trigger a DEA review. That review could be lengthy. The agency considers eight factors in the process, including potential for abuse, public health risks, dependency risks, and more. From there, the DEA would also allow for a public comment period on re-classifiying cannabis. Then, a decision would be made.
The unknown length of this process could push a decision past next year’s presidential election and that could send removing cannabis from the Schedule I back to the drawing board.
Keeping cannabis on Schedule I means Tennessee won’t likely see any sort of cannabis reform. Lawmakers here have said no reforms will (or should) happen unless the drug is re-classified on the federal level. The law that created the Tennessee Medical Cannabis Commission, for example, is predicated on this fact. That means, Tennesseans should not expect medical cannabis — or any other kind — until the drug is moved on the federal level.
Cohen, a longtime advocate for cannabis reform, was clearly frustrated by the delay Thursday.
“I’ve been here 17 years … and I’ve seen DEA heads, I’ve seen [Federal Bureau of Investigation] directors, I’ve seen attorney[s] general, exactly where you’re sitting and say governmental gibberish about marijuana. They’ve done nothing for 17 years, and for years before that. It goes back to the [1930s].
“The government has messed this up forever and you need to get ahead of the railroad. You’re going to get something from HHS. Biden understands [cannabis] should be reclassified. He said from [Schedule I to Schedule III] and it should be classified from [Schedule I] to 420. We ought to just clean it up and get over with it.”
Tennessee’s legal cannabis industry is in a sort of Wild West phase.
The frontier is fresh. The rules are loose. Peril is possible. Good folks outnumber the bad. And fortune awaits those brave enough to grab it.
But there may be a new (well, first) sheriff in town next year. His orders? Bring order to an industry now operating largely outside of government oversight by pioneers living by code if not by law.
Loose laws are evident all over the state. Look no further than the convenience store down the street or just about any truck stop along I-40. Colorful, psychedelic signs and posters promise mellow times with Delta-8 gummies, CBD vapes, and more.
The original hemp plants for those products do not have to be tested in a lab for heavy metals or pesticides. Processing facilities (that make the oil for the product) are unlicensed and not registered with the state. No license is required to sell hemp products. To make them, Tennessee companies need only register as a food manufacturing facility.
Those colorful labels on gummies and such can list a dosage (like 25 milligrams), but no one is checking that. So, it could be more, could be less, or could be nothing at all. Those labels can also say the product is for medicinal use (or anything at all) but no one is checking that either.
The products — many of which look like candy and which people typically buy because a small dose can get you high — are within a child’s grasp on store shelves. The packaging is, many times, appealing to children and can usually be opened as easily as a bag of gummy bears.
How did we get here?
Plenty of states were legalizing cannabis in some form before the 2018 Farm Bill. When the federal legislation legalized nationwide hemp production, many minds turned first to products like those rough-hewn pullovers from the stoner store at the mall.
But legalization opened an unexpected door. Scientists pulled hemp samples, examined them under microscopes, and found cannabinoids. These chemicals came with confusing, exotic-sounding names like Delta-8 and THC-O. But two things were not confusing. No. 1: Those chemicals found in perfectly legal hemp could produce drug-like effects in the body, similar to those in federally illegal cannabis. No. 2: People wanted that.
From there, pioneers poured into Tennessee’s new, green frontier. First, local head shops began carrying these new products, most of the time in tinctures or oils — still pretty far-out-there stuff for workaday parents who might usually have turned to a glass of wine to ease anxiety.
Then, hemp stores, CBD shops, and even upscale Delta-8 lounges popped up in strip malls everywhere, promising “legal weed” from neon signs to those who sought it out. Somewhere along the way, these products became ubiquitous, routine, as normal at the Mapco as chips and beer. Also, those workaday parents began not thinking twice about turning to the once-taboo THC to ease that anxiety.
No one locally allowed these products in the state. The Farm Bill passed and then they just sort of showed up, initially leaving lawmakers (especially conservative lawmakers leery of that wacky tobacky) scratching their heads.
The law firm Bass, Berry & Sims said on its blog, “Without any parameters in state law, Tennessee found itself with a completely unregulated product market rife with false advertising, consumer misuse, and a sustained spike of nonlethal overdoses.” The overdosing is real, especially among children.
Last year, Dr. Rebecca Bruccoleri, director of the Tennessee Poison Control Center, told Knoxville’s WBIR-TV that her team received 115 calls from people concerned about consuming Delta-8 last year — 32 of those calls concerned children under age 5. Doctors at Vanderbilt University Medical Center (VUMC) saw an increase of child-related THC visits, too. Children would present to the emergency room with “excessive vomiting, seizures, altered states of consciousness, and severe depression in breathing that … led to the need for intubation and admission to the pediatric intensive care unit,” the hospital said on its blog last year.
“These edibles resemble candy, and, to young children, they probably even taste like candy,” said VUMC’s Dr. Marla Levine. “They are not stopping at one bite or a nibble. They are consuming the entire piece or possibly pieces. They have no understanding that there are drugs inside.
“The doses that are in these products vary. There is no standardization. Children are exposed to a much higher dose of the drugs leading to a dangerous and oftentimes toxic level in their systems.”
Legislators made much of these reports during this year’s session and they may have, in fact, tipped the scales on this year’s cannabis regulation bill.
The new cannabis bill
While the market here matured around new attitudes toward hemp and all of its products, regulation has been promised (if not threatened) for the Tennessee industry. It came this year.
A bill from GOP House Majority Leader Representative William Lamberth (R-Portland) opened the discussion on the state’s loose cannabis laws last year. (A previous bill from him sought to outlaw all hemp-derived products here.) Even with several committee meetings, testimony from industry leaders, and much work done behind the scenes, the bill failed but work on it continued.
The refined version of this year’s bill was passed on April 20th (*chef’s kiss*) and sent over to Tennessee Governor Bill Lee’s office last Wednesday, May 3rd. That gave him 10 days (excepting Sunday) to move on it. So, Lee has until Saturday, May 13th, to sign the bill, veto it, or let it pass without his signature.
Should the bill pass, the Tennessee Department of Agriculture (TDA) will control the state’s effort to regulate hemp products. If it does, hemp companies, retailers, and hemp consumers will find Tennessee’s Wild West frontier tamed by a man with a badge — a state employee’s ID badge.
That man’s name is Danny Sutton. He has the un-Wild-West job title of assistant commissioner of the Consumer and Industry Services Division of the TDA. It’s a regulatory division of the department that inspects and permits everything from bottled water and retail food stores to dairy farms and beekeepers.
Back in 2015 Sutton’s division of the TDA began oversight of what was then the state’s brand-new industrial hemp program, when the crop was most likely intended to make rope, concrete, and those hippy pullovers.
That changed with the Farm Bill and the discovery of those cannabinoids. The word “industrial” was all but phased out and Sutton’s team now travels the state testing hemp plants to ensure the THC levels in them are below the mandated .3 percent.
Once that testing has been done and the plants have passed inspection, the TDA is out. (If they don’t pass, the plants are legally destroyed.) Whatever happens to that legal hemp and its cannabinoids after a TDA test is up to the farmer and the market. As Sutton said, “It’s just another crop,” and it’s one that thrives here.
“I’ll be brutally honest,” Sutton told members of the Tennessee Medical Cannabis Commission (more on them later) last month. “The state of Tennessee has the perfect weather and the perfect dirt to grow pot. It’s a good crop here. It used to be one of the largest crops grown in our state, along with barley.”
The hemp regulation bill on Lee’s desk would task Sutton’s team with a new program to manage cannabis and an edible foods program (like gummies) from the plant all the way to the shelf.
Should the bill pass, the TDA will begin to register and license every company up and down the hemp supply chain from farmers, transporters, laboratories, to retailers. This is expected to be the first line of defense to root out bad actors and bootleg operations.
Each batch of cannabis would have to be tested by a third-party lab for toxins, but also for “the presence and amounts of cannabinoids.” This is important for consumers who could then trust that the 10 milligram brownie they bought actually contains THC and actually contains 10 milligrams of it. This is also expected to filter out more of those bootleg operators.
New retail stores could not be established within 1,000 feet of a K-12 public, private, or charter school. In stores that aren’t 21-and-up, all of the cannabis products would have to be behind a counter and inaccessible to customers.
No single serving of a product could contain more than 25 milligrams of any cannabinoid. Product labels would have to list dosage amounts, ingredients, possible allergens, and a nutritional fact panel.
Product containers would have to be child-resistant. Nothing about those containers or their marketing could depict or signify “characters or symbols known to appeal primarily to persons under 21.” No ingestible hemp product could be made “into the shape of an animal or cartoon character.” So long, hemp gummy bears.
At work, employers would not have to accommodate the use of hemp products or accommodate an employee working under the influence of it. Employers could also continue to “enforce a drug-free workplace” program. This means firings for positive drug tests are still on the table, and the bill does not allow for any cause of action against employers for wrongful discharge or discrimination in hemp-related firings. So you can’t sue your asshole boss because you failed a piss test, bro.
Homeowners and business owners don’t have to allow or admit guests or customers carrying hemp products or who are under the influence of them. That means if you’re carrying or high, neither your neighbor nor your local watering hole has to let you in.
Driving high? Nope. The bill outlaws operating “a motor vehicle, aircraft, motorized watercraft, or another vehicle while under the influence of a hemp-derived cannabinoid.” It says you can be prosecuted for a criminal offense related to being high on hemp and you must “submit to a breath, blood, urine, or other test to detect the presence” of the substance. However, it does not lay out penalties for getting caught.
Also, the law would restrict hemp sales to those over 21. Sell it to a minor, buy it for a minor, or get caught with it as a minor, and you’ll get popped with a Class A misdemeanor. In Tennessee, that can get you up to 11 months and 29 days in jail, fines of up to $2,500, or both.
The law also sets a bar for hemp businesses. Caught operating outside the state’s new law, owners could face a Class A misdemeanor charge, the same criminal charge for theft under $1,000.
Kelley Mathis Hess, CEO and lobbyist for the Tennessee Growers Coalition, worked with legislators on the regulation bill. She said it will, ultimately, solidify the industry here and give it some credibility. But she thinks the misdemeanor charge is a step too far.
“There are already penalties for operating a business outside of the law,” Hess said. “We don’t support other levels of criminalization when there’s already systems in place for that.”
Collin Bercier, founder and owner of Memphis-based Ounce of Hope dispensary and aquaponic farm, said he has mixed feelings about the new regulations. The industry largely self-regulates, he said, on things like not selling products to those under 21. The 6 percent privilege tax will impact the industry and its customers, but “it is what it is.” Bercier said he’s at least glad lawmakers didn’t try to (once again) kill the industry completely.
“As far as what we are currently operating under in Tennessee, it’s probably the best rules and regulations on the hemp side in any of the states,” Bercier said.
But what about medical?
While work on hemp legislation has continued over the past few years, the Tennessee Medical Cannabis Commission has only watched from the sidelines. But they may get in the game sometime soon, and what some have suggested to them recently could blow the lid for cannabis in Tennessee.
The group was created by the legislature in 2021 to study other states’ medical cannabis programs (not hemp derivatives like Delta-8, but full-bore THC), to build a framework of a program here, and to see if Tennessee even needs a program at all. Since September of that year, the commission has studied. And that’s all they’ve done. And they’re kind of bored.
Members have quit because they just didn’t make it to many meetings. The group has a hard time raising a quorum even if they should ever need to vote on anything. They have money to hire an executive director. But they haven’t because they’re not sure exactly what that person would do and fear they may not get great candidates given the uncertainty around the state ever getting a medical cannabis program.
Members say, “We’re currently regulating nothing,” and that the mixed signals from the legislature — the body that created the group — range from silence, calls for them to slow down, or even the cold shoulder. They are “begging for direction,” they say, and get none.
Should they even keep meeting monthly, they asked last month? They’re knowledgeable in the field by now, but lawmakers just gave the reins of a hemp program to the agriculture department, not the health department. Medical cannabis bills rise and fall with regularity at the state house. What does the legislature even want with them?
A medical cannabis bill, as it turns out. That was the word from veteran lobbyist Melissa Bast last month, testifying to the commission on behalf of two cannabis-forward groups, Tennesseans United and the Tennessee Research Institute. Those bills that rise and fall each year are retreads from familiar places, she said, and lawmakers want something new.
“What I am hearing from the leadership is that they want [a bill] to be from the [Tennessee Medical Cannabis Commission],” Bast said. “They want it to be your bill brought forward. They want it to be vetted … and to be brought forward in a timely manner so that all the departments can see it and all the members can see it so we can get it ready for 2024. I’m hearing this is the path.”
With that, Bast pushed commission members to continue their work, even speed it up if they could.
The lid-busting element of Bast’s plan (aside from the commission’s bill) would be to remove the state’s requirement not to move on cannabis until the federal government removes it from the Schedule I. President Joe Biden made some cannabis reforms last year but did not remove it from the highest tier of illegal drugs, where it still sits next to LSD, meth, heroin, and peyote. Other states have fully legalized cannabis even though it remains a federal crime. Tennessee law says it won’t until the feds say it’s okay.
“Every state that touches us has a program and we don’t,” said cannabis commission member and Manchester pharmacist Dr. Ray Marcrom. “Many times we have delivered that message [to the legislature]. We’ve received nothing back.”
“If eight states around us have [at least a medical cannabis program] if nothing else, look at the revenue we’re losing in Tennessee. But more importantly, think about the patients we’re not taking care of.”
Ounce of Hope’s Bercier said he hopes the state gets a medical program next year but also keeps a wary eye on them.
“The dirty little secret at this point in Tennessee is that the way we are operating now is better than a medical bill,” he said. “Inside of a medical bill lies a lot more overreaching and ridiculous regulations. Not to mention that when you get thrown into the medical licensing, you are now subject to the federal government’s illegality. There’s a lot of bad things about that. But from the business perspective, once you … put yourself into the medical market, you now do not have a lot of the tax benefits that you do [under a hemp-only program].”
The legislature put a price tag on the revenue from hemp sales. The fiscal note with the new bill adds a 6 percent privilege tax to those products on top of state and local sales taxes. This is expected to yield $10 million a year for the state’s coffers.
Should Governor Lee allow the cannabis regulation bill to become a law, businesses would have until July 2024 to comply, getting their licenses from the state and such. While the TDA will take some time to finalize some rules, consumers could see changes in the way they buy hemp here as early as this year.
A new bill would decriminalize cannabis across the state.
The bill would lower simple posession to a $25 fine or three hours of community service. It would raise the felony amount for manufacture, delivery, or sale from a half ounce to one ounce.
It removes references of “marijuana, marijuana concentrates, and marijuana oil from the definition of drug paraphernalia.” It renames items used to ingest, inhale, prepare, or store cannabis as a “marijuana accessory.”
The wide-ranging bill would lower costs on local governments by nearly $15 million per year, according to a financial review of the bill conducted by the Tennessee General Assembly’s Fiscal Review Committee.
The committee said the figure is based on removing the roughly 17,101 annual simple-possession cannabis convictions across the state. The committee multiplied that number by 15, the average days of stay for those charged, by $58.21, the average daily cost of jailing such a person.
The math is more complicated to calculate how much money would be saved from lowering charges on manufacture, sale, and delivery. But the Tennessee Department of Corrections (TDOC) told the review office the state averages 137.8 admissions a year based on these charges. The office calculated the new legislation would lower that figure to an average of 20.76 prison admissions of these kinds annually.
The bill would increase state spending by $100,000 to create a new drug awareness program and by $30,000 each year to support the program.
The new simple possession definition would allow Tennesseans to carry up to one ounce of cannabis, up to five grams of resin extracted from cannabis, and infused products containing up to 1,000 milligrams of THC. Simple possession would become a civil violation and would not subject an offender to arrest. Offenders could pay a $25 fine or serve three hours of community service. Minor offenders would have to serve up to five hours of community service.
The bill also limits probable cause.
“This bill specifies that the odor of marijuana generally does not constitute reasonable suspicion or probable cause but a law enforcement officer may test for impairment based on the odor of marijuana if the officer reasonably suspects the operator of a motor vehicle or boat to be under the influence of marijuana,” reads the bill.
The bill will not allow officials to revoke someone’s bail, parole, probation, or suspended sentence based solely on a positive drug test for cannabis. The review committee said TDOC told them doing this would not have any significant fiscal impact.
The bill would also prohibit officials from removing someone from public assistance programs just for having a positive cannabis test. According to the Tennessee Department of Human Services (TDHS), doing this would not significantly impact the total number of those eligible for programs like Temporary Aid to Needy Families (TANF). TennCare said the legislation would have no fiscal impact on any TennCare programs.
Under the legislation, a positive test would also not be grounds for any adverse employment action against a government employee.