The Traveling Wilburys – perhaps the musical supergroup most aligned with the mood and spirit of the Budding Trends blog – tell us that it’s all right to live the life you please. The state of Alabama, however, has determined that the End of the Line for unregulated consumable hemp is January 1, 2026.
As a reminder, Alabama enacted comprehensive reform of consumable hemp products during the last legislative session. While consumable hemp products are not outright banned under Alabama’s new regime, the who, what, when, where, and how of product offerings are all substantially impacted.
We invite you to read on to see what steps Alabama hemp operators should ensure are taken to comply with each of the provisions of the new law.
What Does HB 445 Prohibit?
Starting on January 1, the sale or possession of consumable hemp products in violation of HB 445 (and sale or possession unlawful hemp products generally) can lead to statutory fines and a class C felony, which includes fines up to $15,000 and potential jail time of one to 10 years.
That is, a person in possession of a Delta-8 vape pen arguably faces the same criminal liability as a person in possession of 1 gram of cocaine or 1 gram of methamphetamine. Don’t ask us why — that’s a question better served for the Alabama Legislature.
And this is not a hypothetical risk. As if hemp operators need a reminder, ABC and local law enforcement will likely enforce HB 445 quickly and harshly. Just before the effective date of HB 445 in July, law enforcement conducted broad, state-wide sweeps of hemp operators, which, in some cases, resulted in the confiscation of up to 60 pounds of product. Consumable hemp operators must be aware that similar sweeps are likely inevitable come January 1, 2026.
What Products Are Impacted?
Any hemp product intended for human or animal consumption. A consumable hemp product is defined as a “finished product that is intended for human or animal consumption and that contains any part of the hemp plant or any compound, concentrate, extract, isolate, or resin derived from hemp. The term includes, but is not limited to, products that contain cannabinoids.” The definition has two important carve outs.
First, any smokable hemp product is not considered a “consumable hemp product.” Smokable is defined to include any product that is heated by combustion, battery, or other means to produce a smoke or vapor. Thus, vapes and flower alike are not consumable hemp products (making them unlawful hemp products).
Second, any product that contains psychoactive cannabinoids that are created by chemical synthesis using non-cannabis materials are not considered “consumable hemp products.” Similarly, those products are also defined as unlawful hemp products, and they are subject to prosecution immediately, even before January 1, 2026.
What Happens if I Sell “Unlawful” Hemp Products?
The sale or possession of an unlawful hemp product, which includes the sale of consumable hemp products by an unlicensed person or a sale that violates the packing restrictions, product content requirements, or labeling requirements, is a class C felony.
Who Can Sell Consumable Hemp Products in Alabama After January 1, 2026?
Only retailers licensed by the ABC Board may sell consumable hemp products in Alabama after the New Year.
Can I Sell Consumable Hemp Products at Just Any Retail Location?
No. Permitted retailer locations generally fall into three categories: 1) hemp “dispensaries;” 2) pharmacies; or 3) grocery stores. Each category requires a location-specific consumable hemp product retailer license, which permits certain retail locations to sell only certain forms of consumable hemp products. For example, hemp dispensaries may sell all forms of consumable hemp products (that is, beverages, edibles, and topical or sublingual products), while retail grocers may only sell consumable hemp beverages. Pharmacies are limited to topical or sublingual consumable hemp products. Of great significance to many, consumable hemp products cannot be sold at convenience stores (currently perhaps the largest point of sale for such products).
In addition, grocery stores and dispensaries must meet certain dimensional requirements, which can be found in Sections 28-12-45(c)(2) and 28-12-45(d)(1), respectively.
Have Noteworthy Hemp Beverage Regulation Changes Been Made Since the Last Set of Proposed Rules?
Yes. The initial regulations promulgated by the ABC Board, which would have required two levels of child-proofing containers, have been modified to allow for the standard type of pop-top typically found on a beer can. This is a significant cost saver for manufacturers. Second, whereas the initial regulations would have required hemp beverages to be locked behind glass and require an employee to retrieve the product, ABC will now allow for unlocked plexiglass that does not require assistance from an employee. In short, while the beverages will be in a different refrigerator from beer, they will be available in the same type of self-service manner as beer. Of course, the beverages will only be available to customers age 21+.
How Do I Sell Consumable Hemp Products in Alabama after January 1, 2026?
Consumable hemp products will be subject to similar types of age-gating (21+), testing, packaging, labeling, and advertising, as will medical cannabis products. And as with medical cannabis products, the first step will be to obtain a license (but not without first running your plans by the local government).
Step 1a: Locate Your Business in a Municipality That Approves of the Sale of Consumable Hemp
For the ABC Board to issue a license, the municipal government covering the jurisdiction in which the retail store is located must approve the retailer’s application for licensure. Thus, practically speaking, a retailer’s first step must be to determine whether the municipality will allow consumable hemp products to be sold (or permit the retailer, specifically, to sell consumable hemp products) within its jurisdiction. This requirement may prove difficult because some municipalities, including Auburn, Millbrook, and Pike Road, have signaled they will not permit the sale of consumable hemp products in their jurisdictions.
Step 1b: Obtain a Consumable Hemp Retailer License
After verifying municipal approval, a written application (and accompanying $50 filing fee) must be submitted to the board by “applicants,” which includes every individual (excluding publicly traded companies) that has a 10% or more stake in the business. This requirement includes the members of any partnerships, associations, or LLCs that meet the ownership threshold as well.
The following information must be included in the application:
- Approval letter from the municipality in which the store is located;
- Name, DOB, place of birth, address, phone number, driver’s license number, and Social Security number of every applicant;
- Proof every applicant is lawfully present in the United States;
- Authorization to perform a criminal background check;
- Two sets of fingerprints taken by a person trained in fingerprinting;
- Complete criminal court record of all arrests and subsequent dispositions for each applicant for the past 10 years;
- Acquisition and proof of a $25,000 surety bond for each location;
- Proof of ownership or lawful possession of the retail location; and
- Certification that all information in the application is accurate.
If the board determines the application is sufficient, it must issue the license, whereupon the licensee must pay a $1,000 licensing fee.
Step 2: Ensure the Product Meets Serving Size and Content Restrictions
Serving sizes for both beverages and edibles are limited to 10 milligrams of THC (topical, sublingual, and other products that are not beverages or edibles may contain 40 milligrams). An edible must be individually wrapped, and a carton of edibles may not contain more than 40 milligrams of THC. For example, a carton containing 10 milligram edibles may only contain four individually wrapped edibles. Similarly, consumable hemp beverages may not exceed 12 fluid ounces and, if in a carton, cannot contain more than four beverages.
Step 3: Test the Product & Obtain a Certificate of Analysis
For starters, each product must be tested by an independent lab and receive a certificate of analysis detailing that the product meets certain requirements and is fit for consumption. As a practical matter, we suggest doing this after ensuring the product meets serving size and content restrictions through in-house potency testing.
The certificate of analysis must include many different product analyses. The certificate must include, but is not limited to, the cannabinoid content and potency; terpene profiles; heavy metal concentrations; chemical concentrations; and residual insecticide, fungicide, herbicide concentrations. The certificate of analysis must identify the products tested by batch number and include the date of certificate issuance, the method of analysis for each test conducted, the product name, a scannable barcode linked to the consumable hemp product’s label, the cannabinoid profile by the percentage dry weight of CBD and total THC (which cannot exceed the amount listed on the product label), and a listing of all ingredients in each product. For a full list of Certificate of Analysis requirements, look to Section 28-12-22.
Step 4: Ensure Proper Packaging of the Product
Consistent with the purpose of Alabama’s hemp regulations, all consumable hemp products must not be packaged in a manner that appeals to children. That is, they may not contain cartoon-like characters of people, animals, or fruit. Additionally, consumable hemp products must not be modeled after a brand of products that is primarily marketed to children (e.g., Warheads, Lemon Drop, Airheads, or other candy or children’s food characters). The product cannot reference terms such as candy, cake, cupcake, or pie in its names or slogan. Similarly, the product cannot contain imagery that imitates school supplies, office supplies, and personal items (e.g., cell phones, earbuds, watches, handheld gaming systems). Finally, the product cannot be branded in a fashion that would lead someone to reasonably believe the package contains anything other than a consumable hemp product.
Step 5: Properly Label the Product and Get the Label Approved
As with many consumable products, hemp products must include a list of all ingredients in descending order of predominance and be labeled with the manufacture date, expiration date, serving size, total number of milligrams in the container, and total number of milligrams per serving size. Like the certificate of analysis, each consumable hemp container must include a scannable barcode or quick response code that is linked to the certificate of analysis. Finally, a myriad of warnings must be included on the label, one of which is a warning to keep the product out of the reach of children. For a full list of label warnings, look to Section 28-12-25.
Finally, a retailer or manufacturer may submit its label, along with a $50 label approval fee, to the board for approval.
Step 6: Comply with Operational and Display Requirements
Certain operational and display requirements apply to each type of license holder.
Hemp dispensaries must only sell consumable hemp products or hold a Lounge Retail Liquor (Class II) license, restrict access to the property for those under 21 years of age (including employees), post a sign (8.5” x 11”) at the entrance detailing the age requirement, and may only sell for purposes of off-premises consumption.
For grocery stores, sales must be limited to consumable hemp beverages. The beverages must be in their own refrigerator or shelved separately (and behind some form of glass or clear plastic) from other alcoholic or non-alcoholic beverages. Importantly, a sign (8.5” x 11”) must be posted on the refrigerator or glass/plastic separator that reads: “These products contain hemp derived compounds. Must be 21 years of age or older to purchase.” Finally, the beverages cannot be visible from an area that contains children’s products.
And for pharmacies, which may only offer topical or sublingual products, all products must be in an area not accessible to the general public. Only a licensed pharmacist or employee directly under their supervision (even if under 21 years of age) may conduct sales for the relevant hemp products.
Step 7: Meet Certain Record Keeping and Reporting Requirements
Licensed retailers must keep and preserve all records related to consumable hemp products for three years. This requirement includes invoices, cancelled checks, and other documentation related to the purchase, sale, exchange, or receipt of all consumable hemp products. And ABC has significant authority to ensure recordkeeping requirements are met. Specifically, ABC “may enter upon the premises of any licensee at any time of the day or night . . . for the detection of violations of this chapter.”
Furthermore, retailers must submit a consolidated report on the last day of the month following the month of receipt or sale of all receipts and sales of consumable hemp products made to customers during the preceding month.
Conclusion
We are less than a month from the implementation of Alabama’s new hemp law, and I get the sense most hemp operators are behind the curve when it comes to understanding and preparing for these significant changes. Those people would be wise to get prepared quickly, because if history is a guide, we can expect law enforcement raids as soon as January 1. Please let us know if we can help you prepare for enactment of the new law.
Thanks for stopping by.
