Rel: April 25, 2025
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2024-2025 _________________________
CL-2024-0604 _________________________
Alabama Department of Public Health and Scott Harris, M.D., in his official capacity as State Health Officer
v.
TSTL Holdings, LLC
Appeal from Montgomery Circuit Court (CV-23-900643)
EDWARDS, Judge.
In July 2022, TSTL Holdings, LLC ("TSTL"), began manufacturing
and distributing various foods containing cannabinoids found in CL-2024-0604
industrial hemp, as that term is defined in Ala. Code 1975, § 2-8-381(4). 1
In January 2023, after receiving a complaint that TSTL was
manufacturing foods without a proper license from the Alabama
Department of Public Health ("ADPH"), Rita Wagnon, the food-protection
supervisor employed by the Etowah County Department of Health,
visited TSTL's premises to perform an inspection. Wagnon explained to
TSTL's personnel that ADPH had regulatory authority over the
production of food in Alabama and that ADPH took the position that
cannabinoids could not legally be added to food products in the State of
Alabama. Shortly thereafter, on January 12, 2023, ADPH issued two
separate food-condemnation orders notifying TSTL that it could not sell
any and all food products that it had manufactured because its facility
had not been properly permitted and because "[f]ood or food products
containing cannabidiol or cannabidiol derivatives shall not be
manufactured or sold within the state of Alabama." ADPH amended the
food-condemnation order on March 13, 2023, to include as a basis for the
order that "[f]ood or food products containing cannabidiol or cannabinoid
1Based on exhibits in the record on appeal, the foods containing
cannabinoids manufactured by TSTL include lollipops, gummies, brownies, rice-cereal treats, chocolate bars, and honey. 2 CL-2024-0604
derivatives shall not be manufactured or sold within the State of
Alabama."
On May 15, 2024, TSTL commenced in the Montgomery Circuit
Court ("the trial court") an action against ADPH and Scott Harris, M.D.,
in his official capacity as State Health Officer ("the SHO"), seeking a
judgment declaring that ADPH did not possess the authority to regulate
hemp products, including food, and requesting both a preliminary and a
permanent injunction prohibiting ADPH and the SHO from condemning
TSTL's food products based on the position of ADPH and the SHO that
Alabama does not permit the addition of cannabidiol or cannabinoid
derivatives to food. 2 The trial court entered a temporary restraining
order requiring ADPH and the SHO to permit TSTL to continue to
conduct its business pending resolution of the declaratory-judgment
2TSTL initially pursued its administrative remedies by filing an
appeal to the State Board of Health from the January 2023 and the March 2023 food-condemnation orders. The food-condemnation orders were apparently upheld, but the trial court indicates in its judgment that "the administrative case was stayed." In any event, our supreme court has recognized an exception to the doctrine of the exhaustion of administrative remedies " ' "[w]hen (a) the question raised is one of interpretation of a statute." ' " LEAD Educ. Found. v. Alabama Educ. Ass'n, 290 So. 3d 778, 784 n.8 (Ala. 2019) (quoting City of Graysville v. Glenn, 46 So. 3d 925, 929 (Ala. 2010), quoting in turn Ex parte Lake Forest Prop. Owners' Ass'n, 603 So. 2d 1045, 1046-47 (Ala. 1992)). 3 CL-2024-0604
action. On June 6, 2023, and February 24, 2024, the trial court held a
trial regarding TSTL's claims.
After receiving posttrial briefs from the parties, the trial court
entered a judgment on July 10, 2024, declaring that "the manufacture
and sale of edible hemp products in Alabama is legal under the plain
language of [the Alabama Industrial Hemp Research Program Act ('the
Hemp Act'), Ala. Code 1975, § 2-8-380, et seq.,] and consistent with the
intent of the Alabama legislature." Although the trial court recognized
that ADPH "has regulatory authority over food manufactured and sold in
Alabama pursuant to Ala. Code 1975, §§ 22-2-2, 22-10-1, et seq., 22-20-5
and implementing regulations," it concluded that ADPH lacked "the
authority to adopt or implement regulations to prohibit the manufacture
or sale of edible hemp products by Alabama companies or otherwise
undermine the intent of the Legislature."3 Moreover, the trial court
opined that ADPH and the SHO "do[] not have the authority to deny
[TSTL], or any other Alabama company, a permit based on the fact that
[it is] manufacturing or selling food containing hemp as defined in the
3Notably, the regulations relied upon by the SHO were not recently
adopted or implemented and had been in existence, in their most current form, since December 2014. 4 CL-2024-0604
[Hemp] Act." Based on those conclusions, the trial court declared the
January 2023 and March 2023 food-condemnation orders to be void and
further ordered ADPH and the SHO to issue to TSTL "the permit or
permits required to conduct its business." In addition, the trial court
entered a permanent injunction enjoining ADPH and the SHO "from
taking any action to prohibit Alabama companies from manufacturing or
selling edible hemp products provided that they comply with the
statutory definitions" and "from denying permits to any company solely
based on the fact that [it is] seeking to manufacture or sell edible hemp
products that comply with the statutory definitions."
ADPH and the SHO appealed the July 2024 judgment to the
Alabama Supreme Court. Our supreme court transferred the appeal to
this court, after that court concluded that, pursuant to Coprich v. Jones,
[Ms. SC-2023-0675, June 21, 2024] ___ So. 3d ___ (Ala. 2024), this court
was the appropriate appellate forum; the supreme court's transfer order
also stated that, if this court were to determine that the amount in
controversy exceeded the $50,000 monetary limit of this court's general
civil appellate jurisdiction, this court must nonetheless hear the appeal
pursuant to our supreme court's discretionary-transfer authority under
5 CL-2024-0604
subsection (6) of Ala. Code 1975, § 12-2-7. In compliance with our
supreme court's directives, see Ala. Code 1975, § 12-3-16, we proceed to
consider the appeal.
We must first address a jurisdictional issue. Insofar as TSTL
named ADPH as a defendant in its declaratory-judgment action, that
action is barred by sovereign immunity. See Alabama Dep't of Transp. v.
Harbert Int'l, Inc., 990 So. 2d 831, 841 (Ala. 2008) (explaining that state
agencies are immune from suit and that "only State officers named in
their official capacity -- and not State agencies -- may be defendants in
[declaratory-judgment] proceedings"); Alabama Dep't of Public Health v.
Noland Health Servs. Inc., 267 So. 3d 873, 875 (Ala. Civ. App. 2018)
(declaring a judgment entered against the Alabama Department of
Public Health was void and dismissing the appeal therefrom).
Accordingly, insofar as the trial court's judgment purports to adjudicate
TSTL's claims against ADPH or to issue an injunction against ADPH,
that judgment is void; because a void judgment will not support an
appeal, we dismiss ADPH's appeal. See Alabama Dep't of Public Health,
267 So. 3d at 875. We will consider the merits of the appeal brought by
the SHO.
6 CL-2024-0604
The Positions of the Parties
The SHO contends that ADPH possesses the authority to regulate
food and food manufacturers. See Ala. Code 1975, § 22-20-5(a). 4 The
SHO argues that, because ADPH has regulatory authority over the
manufacture and sale of food products in Alabama pursuant to § 22-20-
5(a), it is the sole arbiter of whether food may contain hemp or hemp
derivatives like cannabinoids. The SHO points out that no federal or
state law or regulation provides that cannabinoids are a safe food
additive. According to the SHO, no food containing cannabinoids may be
manufactured or sold in Alabama, and, thus, the SHO says, ADPH
personnel properly condemned the food manufactured by TSTL as
adulterated, as defined by Ala. Admin. Code (Dep't Pub. Health), r. 420-
3-20.-01(3)(a).
4Section 22-20-5(a) provides, in pertinent part that
"[t]he State Committee on Public Health shall, as conditions demand, adopt and promulgate regulations for the construction, maintenance and operation of all establishments, and their immediate surroundings, in which foods or beverages intended for sale for human consumption are made, prepared, processed, displayed for sale in an unpackaged state or served."
7 CL-2024-0604
TSTL, however, contends that, in Ala. Code 1975, § 2-8-381(3), the
Alabama Legislature declared that food containing cannabinoids are
"hemp products" and that, therefore, such products are legal. Further,
TSTL posits, the Alabama Legislature expressed a desire to
"commercializ[e] hemp products … to the greatest extent possible," Ala.
Code 1975, § 2-8-382(a), and has also stated that "the development of
industrial hemp production and commercial markets for hemp products
within the state is important to the economic well-being of the state."
Ala. Code 1975, § 2-8-382(b). Thus, TSTL says, ADPH personnel could
not determine that the food produced by TSTL was adulterated and
condemn it based on its containing cannabinoids. Further, TSTL argues
that it should be permitted to continue to manufacture its products, all
of which contain cannabinoids.
The Applicable Law
At issue are the statutes authorizing ADPH to regulate food
production or manufacture in Alabama, Ala. Code 1975, § 22-2-2 and §
22-20-5. ADPH is authorized "[t]o adopt and promulgate rules and
regulations providing proper methods and details for administering the
health and quarantine laws of the state." § 22-2-2(6). In addition, ADPH
8 CL-2024-0604
is further authorized to "adopt and promulgate regulations for the
construction, maintenance and operation of all establishments, and their
immediate surroundings, in which foods or beverages intended for sale
for human consumption are made, prepared, processed, displayed for sale
in an unpackaged state or served." § 22-20-5(a). To that end, ADPH has
enacted regulations governing the permitting and inspection of
establishments that manufacture or serve food and the examination of
food manufactured therein. See, generally, Ala. Admin. Code (Dep't Pub.
Health), r. 420-3-20-.01 et seq. ADPH's regulations define "food" as "any
raw, cooked, or processed edible substance, ice, beverage or ingredient
used or intended for use or for sale, in whole or in part, for human
consumption, or chewing gum." Ala. Admin. Code (Dep't Pub. Health), r.
420-3-20-.01(3)(f). Those same regulations define "adulterated food" as
"any food that bears or contains any poisonous or deleterious substance which may render it injurious to health; or if it consists in whole or in part of any filthy, putrid, or decomposed substance, or if it is otherwise unfit for food; or if it has been prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health; or if it is otherwise defined as adulterated under § 402(A) of the Food, Drug, and Cosmetic Act (21 USC § 342)."
9 CL-2024-0604
r. 420-3-20-.01(3)(a). Moreover, ADPH's regulations adopt by reference
most of the regulations governing food for human consumption set out by
the federal Food and Drug Administration ("FDA") in 21 C.F.R. 100 et
seq. See Ala. Admin. Code (Dep't Pub. Health), r. 420-3-20-.02. Foods
that are determined to be manufactured in violation of ADPH regulations
may be condemned and ordered to be destroyed. See Ala. Code 1975, §
22-10-3; Ala. Admin. Code (Dep't Pub. Health), r. 420-3-20-.06.
Also central to the issues presented is the Hemp Act, which defines
"industrial hemp" or "hemp" as
"[t]he plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, cultivated or possessed by a licensed grower or otherwise in accordance with the state's USDA-approved regulatory plan, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis. Industrial hemp shall be considered an agricultural crop or an agricultural commodity, or both, in all respects under state law. The term excludes marijuana as defined in subdivision 14 of [Ala. Code 1975, §] 20-2-2."
§ 2-8-381(4). In addition, § 2-8-381(3) defines "hemp products" as "[a]ny
and all products made from industrial hemp, including, but not limited
to, cloth, cordage, fiber, food, fuel, paint, paper, particleboard, plastics,
10 CL-2024-0604
seed, seed meal and seed oil for consumption, and seed for cultivation if
the seeds originate from industrial hemp varieties."
The legislature set out the purposes of the Hemp Act in Ala. Code
1975, § 2-8-382:
"(a) The purpose of [the Hemp Act] is to assist Alabama in the development of a more permanent, profitable, and diversified agriculture by moving to the forefront of industrial hemp production, development, and commercialization of hemp products in agribusiness, and other business sectors, both nationally and globally and to the greatest extent possible. These purposes may be accomplished, in part, through all of the following:
"(1) An industrial hemp research program overseen by the [Alabama Department of Agriculture and Industries ('the department')], working exclusively or in conjunction with other research partners. This research program may include the planting, cultivation, and analysis of industrial hemp demonstration plots by selected growers that are licensed by the department pursuant to [the Hemp Act].
"(2) An institution of higher education's program to conduct industrial hemp research.[5]
"(3) The pursuit by the department or an institution of higher education of any federal permits or waivers necessary to allow industrial hemp to be grown in Alabama.
5The term "institution of higher education" is defined in Ala. Code
1975, § 2-8-381(5), as "[a] postsecondary institution, as defined in 20 U.S.C. § 1001(a), that offers a major course of study in agriculture issues." 11 CL-2024-0604
"(b) The Legislature hereby finds and declares that the authority granted in this article and the purposes accomplished hereby are proper governmental and public purposes, and that the development of industrial hemp production and commercial markets for hemp products within the state is important to the economic well-being of the state."
In its last section, the Hemp Act grants the Alabama Department
of Agriculture and Industries ("ADAI") the authority to adopt rules "as
necessary to administer an industrial hemp research program and to
license growers." Ala. Code 1975, § 2-8-383(a). The Hemp Act further
requires ADAI to "coordinate the implementation of [the Hemp Act] with
other state agencies or departments, as needed, to protect public safety
… and create a commercial market for industrial hemp." § 2-8-383(d).
Finally, the Hemp Act also requires ADAI, "in consultation with the
Governor and Attorney General," to "develop a plan under which the
state monitors and regulates the production of hemp." Ala. Code 1975, §
2-8-383(e). The term "hemp products" does not appear in § 2-8-383, and
no provision in the Hemp Act provides ADAI the authority to adopt rules
to regulate the manufacture or sale of "hemp products" or food containing
cannabinoids.
12 CL-2024-0604
The Trial Court's Judgment
The trial court's judgment determined that ADPH personnel could
regulate TSTL as they do other food manufacturers by inspecting and
monitoring its facilities and processes. See r. 420-3-20-.01 et seq. and r.
420-3-22-.01 et seq. However, the trial court prohibited the SHO from
declaring that, pursuant to ADPH regulations, foods containing
cannabinoids were illegal in Alabama and from maintaining its position
that such food could not, under any circumstances, be manufactured in
this state. The trial court concluded that the legislature had clearly
stated its intent to create a commercial market for hemp products in § 2-
8-382(a) and that, based on the inclusion of the word "food" in the
definition of "hemp products" in § 2-8-381(3), intended to legalize the
manufacture and sale of foods containing hemp or hemp derivatives like
cannabinoids, which are specifically included in the definition of the term
"hemp." Based on that conclusion, the trial court also entered a
permanent injunction enjoining the SHO "from taking any action to
prohibit Alabama companies from manufacturing or selling edible hemp
products provided that they comply with the statutory definitions" and
"from denying permits to any company solely based on the fact that they
13 CL-2024-0604
are seeking to manufacture or sell edible hemp products that comply with
the statutory definitions." Finally, the trial court ordered the SHO to
issue to TSTL a permit to manufacture food.
Analysis
On appeal, the SHO first argues that the trial court erred in
determining that the Hemp Act "impliedly repealed" ADPH's statutory
authority to regulate food products. See Weathers v. City of Oxford, 895
So. 2d 305, 309 (Ala. Civ. App. 2004) (stating that "[r]epeal by implication
is not favored in Alabama law"). According to the SHO, the trial court
failed to harmonize the Hemp Act and the statutes and regulations
granting ADPH the authority to regulate food products. See Weathers,
895 So. 2d at 310 (explaining that one of the rules of statutory
construction is to "harmonize the provisions of separate acts as far as
practicable"). The SHO contends that, although the legislature defined
"hemp products" broadly to include "food" in the Hemp Act, the Hemp Act
did not strip ADPH of its authority to regulate food or to declare that food
14 CL-2024-0604
products cannot contain cannabinoids, which, it says, are not generally
recognized as safe food additives by ADPH or by the FDA. 6 We agree.
We begin our analysis by considering the well-known precepts of
statutory construction. Our construction of any statute begins with "the
fundamental rule of statutory construction[, which] is to ascertain and
give effect to the intent of the Legislature in enacting [that] statute."
Norfolk S. Ry. Co. v. Johnson, 740 So. 2d 392, 396 (Ala. 1999); see also
IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So. 2d 344, 346 (Ala.
1992). We must, when possible, "gather the legislative intent from the
language of the statute itself," but we may also consider "the reason and
necessity for the act, and the purpose sought to be obtained by its
passage." Johnson, 740 So. 2d at 396. Of course, "words in a statute must
be given their plain meaning." Mobile Infirmary Med. Ctr. v. Hodgen,
884 So. 2d 801, 814 (Ala. 2003). When a "statute is ambiguous or
6Although TSTL presented evidence at trial indicating that the FDA has indicated that a new regulatory framework will be necessary to address access to and the use of hemp derivatives like cannabinoid, the SHO presented uncontroverted evidence indicating that, at the time of the trial, the FDA did not consider cannabinoid to be a safe food additive. The SHO also presented evidence indicating that hulled hemp seed, hemp-seed protein powder, and hemp-seed oil are considered to be safe food additives by the FDA. 15 CL-2024-0604
uncertain, the court may consider conditions that might arise under the
provisions of the statute and examine results that would flow from giving
the language in question one particular meaning rather than another."
Johnson, 740 So. 2d at 396.
"In interpreting statutory language, a court does not look at one
word or one provision in isolation, but rather looks to a whole statutory
scheme for clarification and contextual reference." USX Corp. v. Bradley,
881 So. 2d 421, 426 (Ala. Civ. App. 2003). A court construing a statute
must consider "the entire statute … not just an isolated part, so that
every clause is given effect in light of the subject matter and purpose of
the law." Norandal USA, Inc. v. State Dep't of Revenue, 545 So. 2d 792,
793 (Ala. Civ. App. 1989). Courts also " 'consider the statute as a whole
and ... construe the statute reasonably so as to harmonize [its]
provisions.' " Proctor v. Riley, 903 So. 2d 786, 789 (Ala. 2004) (quoting
McRae v. Security Pac. Hous. Servs., Inc., 628 So. 2d 429, 432 (Ala.
1993)); see also Weathers, 895 So. 2d at 309 (quoting Ex parte Jackson,
625 So. 2d 425, 428 (Ala. 1992), quoting in turn 2A Norman J. Singer,
Sutherland Statutory Construction § 46.05 (5th ed. 1993)) ("Additionally,
'[s]ections of the Code originally constituting a single act must be read in
16 CL-2024-0604
pari materia in order to "produce a harmonious whole." ' "). We have
explained that "the law favors rational and sensible construction," and
we have further stated "that the Legislature intended a just and
reasonable construction" of its enactments. Weathers, 895 So. 2d at 309.
Therefore, "we will ' "read the concept of reasonableness into the
provisions of [a] statute." ' " Weeks v. Herlong, 31 So. 3d 122, 125 (Ala.
Civ. App. 2009) (quoting Smith v. Smith, 964 So. 2d 663, 670-71 (Ala. Civ.
App. 2005), quoting in turn Ex parte Berryhill, 801 So. 2d 7, 10 (Ala.
2001)).
Moreover, "[t]he Legislature, when it enacts legislation, is
presumed to have knowledge of existing law and of the judicial
construction of existing statutes." Hodgen, 884 So. 2d at 814. When two
statutes conflict, a court must "harmonize the provisions of separate acts
as far as practical." Weathers, 895 So. 2d at 310. However, the principles
of statutory construction "dictate[] that, in the event of a conflict between
two statutes, the specific statute relating to a specific subject will prevail
over the general statute relating to a broad subject." Id.; see also Ex parte
Jones Mfg. Co., 589 So. 2d 208, 211 (Ala. 1991) (stating that "a specific
17 CL-2024-0604
statute relating to a specific subject is regarded as an exception to, and
will prevail over, a general statute relating to a broad subject").
In making its determination that the Hemp Act made food
containing cannabinoids legal and therefore precluded the SHO from
determining that such foods were adulterated and could not be
manufactured in Alabama under ADPH regulations, the trial court
focused on the inclusion of the word "food" in the definition of "hemp
products" and on one of the stated purposes of the Hemp Act -- to develop
a commercial market for hemp products. Certainly, as the trial court
determined, the legislature expressly decided to include "food" as a "hemp
product." However, reading the entirety of the Hemp Act results in the
conclusion that the Hemp Act's intent was to create a hemp research
program aimed at developing a market for industrial hemp and hemp
products and not to authorize an open, unregulated market for food
products containing industrial hemp, its derivatives, or cannabinoid.
Section 2-8-382(a) indicates that the purposes of the Hemp Act
should be accomplished, "in part," through three specified methods: "[a]n
industrial hemp research program to be overseen by [ADAI], working
exclusively or in conjunction with other research partners," "[a]n
18 CL-2024-0604
institution of higher education's program to conduct industrial hemp
research," or "pursuit by [ADAI] or an institution of higher education of
any federal permits or waivers necessary to allow industrial hemp to be
grown in Alabama." The language of the Hemp Act indicates that the
legislature authorized research into the growing of industrial hemp as an
agricultural crop and the production of hemp products through a program
administered by ADAI or through certain educational institutions in
order to assist the state in developing commercial markets for industrial
hemp and hemp products, not that it authorized private commercial
ventures to begin the unregulated production of food containing hemp
derivatives like cannabinoid. No language in the Hemp Act supports the
conclusion that private, third-party commercial manufacturers are to
develop a market for hemp products. The Hemp Act provides no means
of regulating third-party manufacturers of any hemp products, much less
food containing hemp derivatives or cannabinoids. Consistent with this
reading of the Hemp Act, ADAI indicated at trial that it did not regulate
manufacturers of hemp products of any sort and, more specifically, that
it did not have a procedure for licensing or otherwise regulating
manufacturers of food containing hemp derivatives or cannabinoids.
19 CL-2024-0604
The trial court attempted to harmonize its determination that the
Hemp Act legalized the placement of cannabinoids into food with ADPH's
regulatory authority over food manufacturers by recognizing the right of
ADPH personnel to permit and inspect TSTL's facilities pursuant to
ADPH's authority under § 22-20-5(a) and its regulations. See Ala.
Admin. Code (Dep't Pub. Health), r. 420-3-20-.04, r. 420-3-20-.05, and r.
420-3-22-.01 et seq. However, ADPH's regulatory scheme goes much
further than making certain that the facilities that manufacture food
meet sanitation standards. ADPH has been charged with the duty of
ensuring the health and safety of the public through its regulatory
authority over food manufacturers in the State of Alabama. § 22-20-5(a).
To that end, ADPH has adopted the regulations promulgated by the FDA,
including regulations governing food additives. r. 420-3-20-.02. Neither
ADPH nor the FDA recognize cannabinoids as safe food additives.
ADPH's regulations permit it to determine whether a food complies with
ADPH regulations or is adulterated, Ala. Admin. Code (Dep't Pub.
Health), r. 420-3-20-.06.
TSTL argues that the Hemp Act is the more specific act, legalizes
cannabinoids in food, and therefore must necessarily displace ADPH's
20 CL-2024-0604
more general regulatory authority over "food" in regard to food containing
hemp derivatives like cannabinoid. We disagree. Although hemp
products can include food, as the SHO contends, food remains food
regardless of its designation as a hemp product. The Hemp Act legalizes
industrial hemp and recognizes that hemp products might include food
containing hemp, its derivatives, or cannabinoids, but the Act does not
contain any specific provisions providing that food containing hemp
derivatives or cannabinoids is not also food that would be subject to the
same regulations as every other food manufactured in Alabama. In fact,
nothing in the Hemp Act provides any authority for the regulation of food
products containing hemp by ADAI or any other state agency. Instead,
the Hemp Act requires ADAI to "coordinate the implementation of [the
Hemp Act] with other state agencies or departments, as needed, to[,
among other things,] protect public safety," § 2-8-383(d), which supports
the conclusion that, in fact, ADPH retains its authority to regulate food
containing any hemp derivatives to protect public health and safety.
Because ADPH is given the authority to "adopt and promulgate
rules and regulations providing proper methods and details for
administering the health and quarantine laws of the state," § 22-2-2(6),
21 CL-2024-0604
and the ability to regulate the manufacture of food, § 22-20-5(a), TSTL
argues that the statutes governing ADPH are more general than the
Hemp Act. However, ADPH is granted the specific authority to
determine whether "unwholesome … food or foodstuffs" are a public
nuisance based on their being, or the likelihood of their becoming,
"menaces to public health," Ala. Code 1975, § 22-10-1(4), and the
authority to destroy such food or foodstuffs. Ala. Code 1975, § 22-10-3.7
Based on that authority, ADPH has developed regulations relating to the
manufacture of food and has adopted most of the food regulations
promulgated by the FDA, none of which authorizes the addition of
cannabinoids to food. The legislature is presumed to have been aware of
7Section 22-10-3, Ala. Code 1975, reads, in pertinent part:
"When such nuisance consists of … unwholesome … foods or foodstuffs … or beverages …. and which nuisance, in the opinion of the county board of health, should be abated by destroying rather than curing, cleansing or disinfecting the … thing or material involved … the county board of health shall, if after a careful investigation of the facts it considers such a course necessary for the protection of the public health, adjudicate such … things or material involved … to be such nuisance and order its summary destruction without compensation to the owner thereof; and thereupon, the county health officer shall proceed with such destruction in such manner as reasonably to avoid danger of infection." 22 CL-2024-0604
ADPH's regulatory authority over food and its regulations regarding
adulterated food and unsafe food additives. The Hemp Act specifically
creates an industrial hemp research program, part of which includes the
development of a market for hemp products, including food, but the
Hemp Act does not specifically create such a market or provide in any
way for the regulation of food products containing hemp, its derivatives,
or cannabinoid; in fact, the Hemp Act appears to recognize the need for
ADAI to coordinate with other state agencies, like ADPH, to ensure
public safety. § 2-8-383(d). Thus, the Hemp Act is not a more specific
statute relating to the regulation of food such that it should be
determined to have displaced ADPH's regulatory authority over the
safety of the manufacture of food for consumption by the citizens of
Alabama.
The risk to public health that may arise from the unregulated
introduction of cannabinoids into food should not be lightly considered.
The Hemp Act authorizes research of the uses of industrial hemp, but no
research on the use of cannabinoids as additives in food was provided to
the trial court. The Hemp Act authorizes ADAI to enact regulations "to
administer an industrial hemp research program and to license growers
23 CL-2024-0604
to grow industrial hemp." § 2-8-383. No language in the Hemp Act
authorizes ADAI or any other agency to develop regulations regarding
the use of hemp in any of the enumerated hemp products, much less the
use of hemp derivatives like cannabinoid in food for human consumption.
TSTL apparently contends that the legislature has legalized the use of
hemp and its derivatives, like cannabinoids, in food without reservation
and without providing any form of oversight or regulation of such food
products before they are sold to Alabama citizens. That is an
unreasonable construction of the Hemp Act.
TSTL has requested that an Alabama court declare that food
containing cannabinoids as an additive are legal in this state and that
ADPH cannot prohibit their manufacture. Based on our understanding
of the statutes involved, we cannot do so. TSTL is not part of any
"industrial hemp research program" administered by ADAI or by any
qualifying educational institution and therefore has no authority to
assist in the establishment of any market for hemp products or for food
products containing hemp derivatives or cannabinoids. Moreover, ADPH
retains the authority to regulate the manufacture of food in this state,
including the authority to determine whether particular food additives
24 CL-2024-0604
are safe for human consumption. Accordingly, we reverse the judgment
of the trial court, and we remand the cause to the trial court for the entry
of a judgment consistent with this opinion. 8
APPEAL DISMISSED IN PART; REVERSED AND REMANDED
WITH INSTRUCTIONS.
Moore, P.J., and Hanson, J., concur.
Fridy, J., concurs specially, with opinion.
Lewis, J., concurs in the result, without opinion.
8Having concluded that, pursuant to ADPH's regulations, ADPH
personnel may regulate the production of food containing hemp derivatives or cannabinoids, even to the point of declaring that they may not be manufactured in the state, we need not separately consider the propriety of the trial court's entry of a permanent injunction prohibiting the SHO "from taking any action to prohibit Alabama companies from manufacturing or selling edible hemp products provided that they comply with the statutory definitions" and "from denying permits to any company solely based on the fact that they are seeking to manufacture or sell edible hemp products that comply with the statutory definitions" or its order directing the SHO to issue to TSTL a permit to manufacture food. Those orders flowed from the determination that ADPH could not regulate food containing cannabinoids or declare food containing cannabinoid to be illegal, and, in light of our decision, are therefore no longer legally sustainable. See Walden v. ES Capital, LLC, 89 So. 3d 90, 105 (Ala. 2011) (quoting TFT, Inc. v. Warning Sys., Inc., 751 So. 2d 1238, 1242 (Ala. 1999), overruled on other grounds, Holiday Isle, LLC v. Adkins, 12 So. 3d 1173 (Ala. 2008)) (stating that, in order to establish entitlement " 'to a permanent injunction, a plaintiff must demonstrate success on the merits' "). 25 CL-2024-0604
FRIDY, Judge, concurring specially.
I believe that the main opinion faithfully applies the rules of
statutory construction as laid down by our supreme court and that it
reaches the proper outcome. Thus, I concur. I write specially to express
my hope that our supreme court will reconsider, at some point, its
adoption of one of the rules of statutory construction expressed in the
main opinion, namely, that a court should begin the task of interpreting
a statute by trying to ascertain and effectuate the Legislature's "intent"
in enacting the statute.
Justice Mitchell, in a dissenting opinion, wrote that "it is never [a
court]'s task to determine legislative intent." Ex parte N.G., 321 So. 3d
655, 661 (Ala. 2020) (Mitchell, J., dissenting). I agree with him, for three
simple reasons: (1) there is no way to determine what each member of
the Legislature understood to be the meaning of a bill, (2) there is no way
to determine what each member of the Legislature believed to be the
purpose of a bill, and (3) there is no such thing as a collective "intention"
among 145 legislators -- all of whom represent different constituents, are
spread over two houses, and are voting at two different times following
two different presentations by two different members on the floors of two
26 CL-2024-0604
different chambers. See, generally, Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts at 391-96
(Thomson/West 2012) (noting, among other things, "that references to
intent have led to more poor interpretations than any other phenomenon
in judicial decision-making").
If a bill passes and becomes a law, the actual words of the statute
are the only things about which we can be sure that at least a majority
of the members of the Legislature agreed. The meaning of those agreed-
upon words -- not the intentions of those who agreed upon them -- should
be the only thing we are tasked with ascertaining. And, the tools for
accomplishing the task of ascertainment should not involve an attempt
to discern what those legislators who voted in favor of the bill, many of
whom may have had very different understandings of the bill, were
thinking at the time they voted for it. In short, "[t]he use of the term
legislative intent encourages [the] search for the nonexistent," id. at 394,
and I encourage our supreme court to excise from our caselaw any
directive that requires courts to engage in that search when considering
the meaning of a statute.