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).

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

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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' ").
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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

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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.

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