Author: Amroh Idris
Amroh Idris focuses primarily on intellectual property and commercial litigation. He also has experience with white-collar criminal defense litigation as well as internal investigations. Mr. Idris has experience interacting on behalf of clients with governmental entities such as the U.S. Department of Justice.
I. Introduction
North Carolina – the ninth most populous state in America with a population north of ten million residents – remains a vestige of cannabis regulation. Notwithstanding that North Carolina decriminalized the possession of small amounts of cannabis in 1977, which resulted in possession of less than half-ounce of marijuana resulting in a monetary fine of up to $200, the state remains rather draconian in its treatment of cannabis related offenses. Currently, possession of greater than one and a half ounces of cannabis is a class 1 felony subject to a punishment between three and eight months of incarceration, in addition to a discretionary fine. In regards to cultivating cannabis, North Carolina provides no safe harbor, with any amount of cultivation subjecting an individual to a class 1 felony at minimum.
In spite of North Carolina’s draconian regulation of cannabis, a survey conducted by SurveyUSA in 2022 showed that fifty-seven (57) percent of voters supported legalizing cannabis for adults, while less than a third of participants (32%) supported the continuing illegality of recreational marijuana.[1] In December 2022, Roy Cooper, the governor of North Carolina, publicly backed his support for the broader decriminalization of cannabis by noting the discriminatory impact in which cannabis regulation has impacted the state’s constituents.[2]
II. History of Failed Legislation
Over the years, members of the North Carolina General Assembly, which is comprised of 170 members, including fifty (50) Senators and 120 members of the House of Representatives,
have unsuccessfully attempted to pass legislation to legalize both medical and recreational cannabis in North Carolina.
In 2014, House Bill 1161 was introduced by Representative Kelly Alexandar.[1] House Bill 1161 ambitiously sought to establish a referendum on the November 2014 ballot to amend the North Carolina Constitution to legalize the medical use of cannabis. Given the challenges of passing a constitutional amendment – requiring super-majorities in both the House and Senate before the legislation can appear on a ballot to the voters – House Bill 1161 failed to obtain the necessary votes in either the North Carolina Senate or House of Representatives.
In 2014, House Bill 1220 was introduced by North Carolina House of Representatives McElraft, Avila, Carney, and Fulghum.[2] Known as the North Carolina Epilepsy Alternative Treatment Act, House Bill 1220 authorized the use of hemp extract as an alternative treatment for children with intractable epilepsy. House Bill 1220 was signed into law by the North Carolina Governor on July 3, 2014. Under House Bill 1220, the state of North Carolina legalized the use of CBD oil with less than 0.3% THC and at least 10% CBD for intractable epilepsy. Importantly, House Bill 1220 legalized an extremely attenuated use for medical cannabis, and did not legalize medical cannabis for the greater North Carolina population. Additionally, House Bill 1220 did not authorize companies to manufacture CBD oil.
In 2015, House Bill 1220 was amended by House Bill 266,[3] which increased the CBD oil concentrate to at least 5% CBD and less than 0.9% THC for individuals with intractable epilepsy. House Bill 766 was signed into law by the North Carolina Governor on July 16, 2015. Similar to House Bill 1220, House Bill 766 did not legalize an overarching medical cannabis regimen in North Carolina, but merely allowed for CBD oil concentrate as an alternative treatment to children with epilepsy.
In 2021, Senate Bill 711, known as the North Carolina Compassionate Care Act, was introduced by North Carolina Senators Rabon, Lee, and Lowe.[1] Senate Bill 711 sought to allow the licensure of ten (10) businesses to grow and process medical cannabis, as well as the licensure of eighty (80) dispensaries to sell medical cannabis to qualifying patients afflicted with one or more medical conditions, including cancer, amyotrophic lateral sclerosis (ALS), and post-traumatic stress disorder (PTSD).[2] Senate Bill 711 overwhelming passed in the Senate with a vote of 35 to 10. However, Republicans in the House of Representatives did not allow Senate Bill 711 to advance for a vote following an internal caucus vote. As a result, Senate Bill 711 failed to obtain the necessary support in both chambers, which is required for a bill to become law in North Carolina. [3]
On March 21, 2023, Senate Bill 346 was introduced by Senators Meyer, Chaudhuri, and Murdock (Primary sponsor).[4] Senate Bill 346 sought to establish a framework for the production and sale of recreational cannabis for adults in North Carolina.[5] Specifically, Senate Bill 346 sought to legalize the possession of up to two (2) ounces of marijuana, fifteen (15) grams of marijuana concentrate, and up to 2000 milligrams of THC marijuana infused products for those individuals twenty-one (21) and older.[1] Additionally, Senate Bill 346 sought to legalize the personal cultivation of up to six (6) marijuana plants for persons twenty-one (21) and older. Unfortunately, Senate Bill 346 failed to pass out of its respective chamber but due to the biennium cycle of the North Carolina legislature, Senate Bill 346 will carry over to the 2024 North Carolina legislative session.
Similarly, on April 17, 2023, House Bill 626 was introduced by Representatives Autry, Alexander, Harrison, and Hawkins.[2] House Bill 626 sought to establish a framework for the production and sale of recreational cannabis for adults in North Carolina. Specifically, House Bill 626 sought to legalize the possession of up to two (2) ounces of marijuana, fifteen (15) grams of marijuana concentrate, and up to 2000 milligrams of THC marijuana infused products for those individuals twenty-one (21) and older.[3] House Bill 626 passed its first of three required readings on the House floor on April 18, 2023. Unfortunately, House Bill 626 failed to pass out of its respective chamber but due to the biennium cycle of the North Carolina legislature, House Bill 626 will carry over to the 2024 North Carolina legislative session.
III. Legalization by the Eastern Band of Cherokee Indians (EBCI)
On September 7, 2023, Members of the Eastern Band of Cherokee Indians (EBCI) voted in favor with a 70% approval of a referendum to legalize recreational cannabis for all adults twenty-one (21) and older, regardless of whether or not they were a tribe member of the EBCI. The 2023 referendum followed a 2021 referendum in which the EBCI decriminalized marijuana possession and legalized cannabis for medical purposes. The 2021 referendum also included a
vote to allocated $50 million to refurbish a bingo hall to a marijuana superstore. The 2023 referendum to legalize recreational cannabis for all adults twenty-one (21) and older means that the refurbished bingo hall on EBCI tribal territory, which consists of nearly 57,000 acres covering five counties – Cherokee, Graham, Jackon, Macon, and Swain – in North Carolina, will be in the only place in the entire state of North Carolina to legally purchase medical or recreational cannabis.
In response, on September 4, 2023, North Carolina Congressman Chuck Edwards introduced the Stop Pot Act, which would withhold ten (10) percent of federal highway funds from areas that violate federal law under the Controlled Substances Act, which continues to prohibits recreational marijuana and classifies it as a Schedule I drug.
IV. Conclusion
Though it seems that attitudes are shifting surrounding the legalization of cannabis in North Carolina, the North Carolina General Assembly seems to be disenchanted with the wants of its citizenry, and has failed to gain momentum in passing cannabis regulation in North Carolina. Historically speaking, North Carolina Republicans have not expressed a desire to change the status-quo of current marijuana regulation in the state. Presently, with the defection of Tricia Cotham from the Democratic Party, Republicans hold a veto-proof majority in both chambers of the North Carolina General Assembly, which does not bode well for cannabis deregulation in the state going forward. Nonetheless, given the referendum passed by the EBCI, North Carolina remains a potential outfit for cannabis deregulation in the future.
https://www.ncleg.gov/BillLookup/2015/h766
Specifically, the North Carolina General Assembly is comprised of 170 members, including 50 Senators and 120 House of Representatives. A bill must first be introduced into either the House or the Senate, which is then reviewed by a committee that reports on the introduced bill. The bill must then be read three times in each chamber. The bill is either passed or denounced in the chamber in which it is introduced. Subsequently, the bill must be introduced and approved in the other chamber. If the bill is changed at all during this process, the bill must either return to the original chamber for a new vote or the bill proceeds to a conference committee. Only in the event that the bill received no additional changes, upon successful vote in both the House and the Senate, will the bill be sent to the governor for signing.
