A poorly crafted and hastily written HB445 has become Alabama’s latest legal disaster: a 25-page jumble of contradictions and confusion that would be almost comical if it weren’t so serious.
HB445 bans the sale of smokable hemp products in Alabama, while also imposing a labyrinth of regulations on consumable hemp products like edibles, drinks, tinctures and topicals. These products are capped at 10 mg THC per serving and 40 mg per package. Every manufacturer, distributor and retailer will need a license from the Alabama Alcoholic Beverage Control Board. Testing and labeling standards, age restrictions (21+), no online sales or deliveries, and a 10 percent excise tax on sales — all spelled out, yet often in the vaguest possible terms.
But here’s where the law’s confusion reaches a fever pitch: it takes effect on July 1, 2025, but the licensing, testing and enforcement provisions don’t kick in until January 1, 2026. The result? A six-month no-man’s-land with no clear rules for businesses, law enforcement or the public. As of now, the ABC Board has not issued a single page of detailed guidance, even though the law places that responsibility squarely on their shoulders.
Rep. Andy Whitt, who sponsored HB445 in the Alabama House, and Sen. Tim Melson, who championed it in the Senate, have both admitted it is unclear whether smokable hemp vapes are banned, while Whitt insists the Board is “diligently working to release clear guidelines.” But no one can say when those guidelines will materialize. Meanwhile, Alabama Attorney General Steve Marshall’s office told Al.com just this past week that smokable hemp products become illegal on July 1, 2025 — adding to the chaos and confusion.
Does this mean that any edible, drink, tincture or topical that exceeds the 10 mg THC per serving or 40 mg per package caps will no longer be legal to sell in Alabama? Will retailers be forced to clear their shelves? Will manufacturers have to reformulate or leave the state? And will anyone caught in possession or sale of these products face criminal penalties?
As if that’s not confusing enough.
This isn’t the first time Alabama has tried to regulate a federally legal product and found itself on shaky constitutional ground. Just last month, the Petroleum and Convenience Marketers of Alabama sued the state over House Bill 8, a new law restricting the sale of e-cigarettes and vapes in convenience stores. Their lawsuit argued that Alabama’s heavy-handed restrictions were preempted by federal law and violated the Supremacy Clause — echoing familiar concerns about HB445. In the PCMA’s own words: “To the extent that the specialty-retailer provision purports to allow the ABC Board… to bring enforcement against retailers based solely on whether a product has been formally authorized by FDA, this provision is preempted by federal law.” Faced with this challenge, Alabama quickly backed down, agreeing to let stores keep selling products long protected by federal law.
This legal tug-of-war isn’t new for Alabama. Time and again, the state has tried to impose its own rules on federally regulated products, only to retreat when confronted with the Supremacy Clause. HB445’s ban on smokable hemp is a carbon copy of this pattern: a state law that collides with federal protections for hemp, imposing harsh criminal penalties on a product that, ironically, is less intoxicating than marijuana itself. If history is any guide, HB445 may not survive the same constitutional scrutiny.
Here is where the law’s contradictions become more than just legislative laziness. Under HB445, selling or possessing smokable hemp — a product with negligible THC, no intoxicating effects, and recognized wellness benefits — becomes a Class C felony, punishable by up to 10 years in prison. Meanwhile, marijuana possession in Alabama remains a misdemeanor, carrying up to a year in jail or a fine.
This inconsistency isn’t just curious — it’s potentially unconstitutional. The Equal Protection Clause of the Fourteenth Amendment demands that the law treat similarly situated substances alike unless there’s a rational reason to treat them differently. Smokable hemp and marijuana are both plant-based products that people smoke. But smokable hemp has almost no THC and no intoxicating effect, while marijuana is a known psychoactive substance. There’s no rational basis for treating the less harmful product — the one that won’t get you high — more harshly.
The state will likely argue it’s protecting public health, but that argument collapses under the weight of logic: hemp, by definition, has negligible THC. To treat it more severely than marijuana — especially in a state that only recently took steps to reduce marijuana penalties — looks arbitrary and capricious. The law’s heavy-handed punishment doesn’t align with the relative risk, and that’s a red flag under the Substantive Due Process Clause. Criminal laws must be reasonable and proportional to the harm they address. Here, there’s no harm to justify a 10-year felony sentence for selling a product that’s already legal under federal law.
There’s even a credible argument that this law amounts to cruel and unusual punishment under the Eighth Amendment. Ten years in prison for a non-psychoactive, federally legal product? That doesn’t just strain credulity — it strains the Constitution itself.
HB445 isn’t just a policy mistake. It is a moral and legislative failure. Alabama lawmakers have created a legal contradiction that punishes common sense rather than protecting public safety. If this law isn’t challenged, it will criminalize people not for selling something dangerous, but for selling a product that, ironically, is less harmful than marijuana. Alabama deserves better than laws that ignore reason, upend fairness and trample the very constitutional principles that are supposed to protect us all. We must demand that our lawmakers revisit this misguided law, correct its contradictions, and restore the balance between public safety and personal liberty. Because if the law is meant to serve the people, it must also serve justice — and HB445 serves neither.
Yes, it is poorly crafted and thought out, so it is easy to pick apart and break down. As a legal and compliance professional, I taken the liberty to show just how poorly it is being interpreted. My memorandum is as follows:
Legal Memorandum
Subject: Statutory Enforcement Timing and Interpretation of Alabama HB445 – Chapter 12 of Title 28
Prepared for: Retailers, Legal Counsel, Advocacy Coalitions, and Industry Stakeholders
Date: July 2025
Prepared by: [Your Name / Organization]
I. Executive Summary
Alabama HB445 creates a new regulatory framework for consumable hemp products under Chapter 12 of Title 28. While the act takes legal effect on July 1, 2025, Chapter 12’s regulatory and penalty provisions are explicitly delayed until January 1, 2026, per §28-12-3(a). Despite this clear deferral, enforcement agencies have undertaken premature actions, issuing criminal threats, seizing products, and advising closures based on statutory provisions not yet in force.
This memorandum affirms that enforcement authority under Chapter 12 is not legally operative until January 1, 2026. It also addresses the repeal of prior hemp-related criminal law (§13A-12-214.4), confirms the statutory gap that results, incorporates interpretive doctrine and Supreme Court precedent, and dismantles flawed enforcement claims surrounding smokable and vape products.
II. Statutory Authority and Enforcement Timeline
A. Legal Enactment vs. Governance
– HB445 Effective Date:
– “This act shall become effective July 1, 2025.”
– Chapter 12 Governance Clause (Delayed Enforcement):
– §28-12-3(a):
“Effective January 1, 2026, consumable hemp products distributed into or within the state and offered for sale and sold to consumers in this state shall be governed by this chapter.”
This clause postpones all enforcement provisions under Chapter 12 until January 1, 2026.
B. Affected Provisions
| Section | Function | Status Before Jan 1, 2026 |
| §28-12-2 | Definitions/exclusions (e.g., smokable hemp) | Not enforceable |
| §28-12-60 | Online/direct sales ban | Not enforceable |
| §28-12-61 | Criminal penalties for excluded products | Not enforceable |
No carve-out exists to accelerate the enforceability of any provision within Chapter 12.
III. Interpretive Doctrine
A. Plain Meaning Governs
– “Governed by this chapter” refers to all legal consequences under Chapter 12.
– Definitions and criminal penalties are not legally operative until this governance clause takes effect.
– Courts do not infer accelerated timelines without textual support.
B. No Legislative Override
HB445 contains no “notwithstanding” clauses or alternate effective dates for key subsections. Thus, enforcement logic follows the activation trigger in §28-12-3(a).
IV. Supreme Court Precedent
– Loper Bright v. Raimondo (2024)
— Courts must apply independent judgment and interpret statutes based on their best reading.
– Corner Post v. Federal Reserve (2024)
— Agencies cannot enforce rules until statutory conditions and rulemaking prerequisites are fulfilled.
– Kisor v. Wilkie (2019)
— Deference only applies if courts exhaust interpretive tools and the statute remains ambiguous.
These cases support the conclusion that HB445’s Chapter 12 cannot be enforced prior to its operative date.
V. Enforcement Against Smokable Hemp Is Unlawful Until 2026
– §28-12-2 defines “smokable hemp” as excluded from “consumable hemp products.”
– §28-12-61 applies criminal penalties for sale/possession of excluded items.
– Both provisions are embedded in Chapter 12.
– Chapter 12 does not govern hemp products until January 1, 2026.
Conclusion: Enforcement of bans on smokable hemp products before 2026 contradicts the statute.
VI. Repeal of §13A-12-214.4 and Statutory Gap
A. HB445 Repeal Provision
Section 2: “Section 13A-12-214.4, Code of Alabama 1975, relating to the sale of psychoactive cannabinoids, is repealed.”
Section 3: “This act shall become effective July 1, 2025.”
Repeal is immediate and governed by the act’s default effective date.
B. Enforcement Vacuum
| Timeline | Status |
| Prior to July 1, 2025 | §13A-12-214.4 governs psychoactive hemp |
| July 1, 2025 | §13A-12-214.4 is repealed |
| July–Dec 2025 | No statutory regulation of psychoactives |
| Jan 1, 2026 | HB445 Chapter 12 becomes operative |
No provision in HB445 bridges this six-month gap.
VII. Enforcement Actions Are Legally Invalid
Retailers cited, warned, or penalized under HB445 prior to January 1, 2026 may seek injunctive relief or administrative challenge based on:
– Absence of operative statutory authority
– Unissued ABC rulemaking
– Repeal of prior enforcement statute
– Doctrinal and constitutional protections
VIII. Recommended Response
Businesses should:
– Refuse compliance with unenforceable directives
– Request written statutory basis for any enforcement attempt
– Prepare legal challenge grounded in §28-12-3(a) governance delay
– Share this memorandum with legal counsel and industry networks
IX. Statutory Precision: Vaping Is Not Smoking
A. No Mention of Vaping in HB445
HB445 criminalizes “smokable hemp products” under §28-12-2(5)(b)(1) and applies penalties via §28-12-61, but never defines vaping or refers to electronic delivery systems. Absent express inclusion, vaping cannot be presumed to fall under “smoking.”
B. Federal Definitions Confirm the Distinction
– CDC: “Electronic cigarettes… do not burn tobacco. Instead, they use a battery to heat a liquid… into an aerosol.”
– FDA: “Vapes… create an aerosol inhaled by the user. They do not combust material.”
Smoking = combustion of plant matter
Vaping = aerosolization of e-liquids
C. Legal Consequence
– HB445 does not encompass vaping in its language or definitions
– Enforcement actions targeting vape products under smokable hemp bans are unsupported
– Courts will not infer statutory inclusion where none exists
Conclusion: Vape-delivered products do not meet the statutory definition of “smokable hemp” and are not criminalized under HB445 absent legislative amendment.
X. Final Legal Position
HB445’s Chapter 12 is codified effective July 1, 2025 but remains unenforceable until January 1, 2026. Enforcement efforts relying on provisions within Chapter 12 are legally unsupported until that date. Vape products are not covered by the statute’s smoking prohibition. Agencies acting prematurely are exceeding statutory bounds.