On Friday, September 25, 2020, the Nebraska Supreme Court affirmed the dismissal of criminal charges related to the sale of cannabidiol (CBD) in Washington County, Nebraska.

The case, State v. Archer, 307 Neb. 330, represented the third time the county attorney attempted to prosecute a retailer and an employee for the sale of CBD. After the third dismissal by the trial court, the county prosecutor appealed to the Nebraska Supreme Court, asking for guidance on the prosecution of CBD in Nebraska after the 2019 passage of LB 657, the Nebraska Hemp Farming Act. The Nebraska Hemp Farming Act was passed in response to the federal 2018 Farm Bill, which further expanded the legalization of hemp production under federal law. Consistent with the 2018 Farm Bill, the Nebraska Hemp Farming Act permits the production of cannabis containing less than 0.3 percent of the psychoactive component of the cannabis plant, tetrahydrocannabinol (THC).

The Supreme Court examined Nebraska’s Uniform Controlled Substances Act and determined the county attorney failed to offer sufficient evidence to support criminal charges. The Supreme Court explained that even though the conduct at issue occurred before the enactment of the Nebraska Hemp Farming Act, the county attorney failed to prove the substance at issue met the statutory definition of CBD under the Uniform Controlled Substances Act. Because of the county attorney’s failure of proof, the Supreme Court “decline[d] the invitation to address the prosecution of cases involving CBD products” following the enactment of the Nebraska Hemp Farming Act.

The Nebraska Supreme Court’s decision highlights the uncertainty surrounding the status of CBD, hemp, and other THC containing products in Nebraska following recent legislative changes at the state and federal levels. 

Read the Supreme Court’s opinion here.

If you have any questions regarding the Nebraska Supreme Court’s opinion, please contact one of the attorneys listed below.