concurring.
I agree with Justice Cooper’s concurring opinion that the Legislature cannot criminalize the possession of hemp (cannabis sativa indica) consistently with Kentucky Constitution § 2 simply because it physi*551cally resembles marijuana (cannabis sativa sativa) and may complicate drug enforcement efforts. In my opinion, the General Assembly may prohibit or otherwise regulate hemp within its definition of marijuana, KRS 218A.010(14), because hemp contains a quantity of tetrahydrocannabinols (THC). We need not, however, rely upon other legislation enacted by the General Assembly or the United States Congress to support the conclusion that the regulation of any quantity of THC is properly within the General Assembly’s police power. Almost a century ago, the predecessor to this Court examined the contours of Kentucky Constitution § 2 and the General Assembly’s police power with respect to the regulation of intoxicating beverages, and concluded, with respect to “cider,” “malt mead,” and “near beer,” that the presence of a potentially harmful substance (alcohol) and not the concentration of that substance determined whether it may be regulated.
In pre-prohibition Kentucky, the forces of temperance sought to regulate alcohol within the context of Kentucky’s local option law, which allowed towns and localities to prohibit or otherwise regulate the sale of alcoholic beverages:
The year 1891, under the new Kentucky Constitution, witnessed the passage of an elaborate and detailed local option law by the legislature to ascertain the wishes of the people locally concerning the sale of alcoholic beverages. Instead of 20 legal voters as required in the law of 1873, the number of legal voters who could call an election was made dependent on at least 25 per cent of the votes cast in each district at the last general election. A majority vote would decide the outcome of the election.
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The Kentucky Occupational license fees were closely related to local control purposes. At first the retailing stage only was taxed. The early single-tavern license evolved into a retail license fee graduated in amount according to whether the retailer also operated a tavern or was a merchant only. Both state and local license fees were authorized. The post-Civil War legislation continued the classification of retail licenses revolving around the distinction of whether food and merchandising activities were associated with the retailing of spirits. In the decade of the 1880’s this classification was continued but was fused with another classification graduated directly according to the alcoholic proof of the beverage dispensed at retail.1
Pursuant to these local option statutes, various statutes and ordinances were passed regulating the retailing of alcoholic beverages through measures ranging from outright prohibitions2 to limitations on the times when taverns may remain open3 and the age and gender of those allowed on the premises.4
*552In 1901, our predecessor Court considered a challenge to an ordinance passed by the City of Pikeville which regulated the sale of hard cider5 with an occupational license tax.6 The Court found the tax constitutional, as the power to regulate alcohol is not dependent on the degree of a beverage’s intoxicating effect:
To what extent government may regulate or prohibit useful, or even harmless, callings, as an invasion of the citizen’s liberty in the “pursuit of happiness,” is not here involved. It is generally conceded now, and certain in this state is it established, that it is a proper exercise of the police power, inherently incidental to government, to regulate by license or otherwise, or even to prohibit, those callings hurtful to the morals, the health, or the peace of society. Embraced in such is the making, vending, and use of intoxicants. Those liquors coming within the accepted definitions of “spiritous, vinous, and malt” are the most generally treated of in such legislation. But the very fact that the legislature exercises and delegates ... power, under the head of “police regulations, ” to regulate ... such, is a sufficient basis for a similar exercise of the same power in like regu-lotion of the sale of other intoxicants, whether of greater or less intoxicating effect; for, after all, it is the fact that the proscribed article is hurtful to health or peace or morals, and not the extent of its hurtful capacity, that justifies the governmental interference. So, if the fact is that a given article in its nature is objectionable on any of the grounds named, it is properly within the police power of the state, and of the municipality when so delegated, to regulate it’s use by exacting a license therefor, or even to prohibit it. Cider is “a strong drink,” a beverage; in no sense a necessity more than is beer or wine. It is as distinctly a beverage as either beer or wine. True, it is not as intoxicating, but its classification as a beverage is as distinct as either of the others, and not the less certain.7
Opportunistic brewers, seeking to reclaim a market niche closed by the forces of temperance, trumpeted the relative beneficence of malt beverages8 and attempted to slip under the radar of statutes regulating “intoxicating liquors” by brewing beverages with lower alcohol contents.9 In Bradford v. Jones,10 the Court addressed an ordinance, with a potential fine of $5 for noncompliance, enacted by the *553town of Jellico designed to regulate malt beverages containing alcohol under the heading of “soft drinks”: “Any person or persons, or firms, or corporations, who shall engage in the business of selling soft drinks shall pay a license tax to the town treasurer of the town of Jellico of fifty dollars per annum, payable quarterly.”11 Bradford, a restauranteur, sought a writ to prohibit the local police judge from imposing the fine against him on the grounds that the license fee was unreasonable, arbitrary, and oppressive. The court held the ordinance a valid exercise of the town’s delegated police power to the extent it regulated beverages containing a quantity of alcohol:
The words “soft drinks” are not defined by statute or by the ordinance; but in recent years they have come to have a well-known and popular use in this state, and are commonly understood to mean nonintoxicating beverages that are sold in places where there were formerly sold intoxicating liquors, and may be said to have come into use with the abolition of the barroom and other places where liquor was sold by licensed dealers. While including lemonade, soda water, mineral waters, and other innocent and harmless beverages that are and have been for years sold all over the country, they are generally used in reference to “malt mead,” “near beer,” and other alcoholic decoctions invented to take the place of intoxicating drinks. “Soft drinks” that contain any per cent, of alcohol are regarded as hurtful to the morals and health of the community, and their sale might well come within the control and regulation of the police power. But such “soft drinks” as lemonade, soda water, and mineral waters that are pure and wholesome, and contain no alcohol, are not detrimental to the public good, and their sale does not need police regulation or control.
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It might be arbitrary and oppressive to fix the license fee for selling useful and pure mineral or health-giving waters at a sum that would virtually prohibit their sale, when it would not be arbitrary and oppressive to fix a license fee at a prohibitive figure for the sale of beverages that are not wholesome or necessary .12
The Court had a second opportunity to examine an attempt to regulate low-alcohol content beverages, in Tolliver v. Blizzard,13 when it heard a constitutional challenge after the City of Olive Hill sought to regulate the sale of “soft drinks” by permitting the sale of only those “soft drinks” specified by ordinance:
That it shall be unlawful for any person or persons, corporations or firms, on and after the 17th day of May, 1910. To sell or conduct or operate a place for the sale, barter or loan, by retail or wholesale, of any proprietary or soft drinks, except lemonade, milkshake, soda water labeled pop and coca-cola, within the city limits of Olive Hill, Carter county, Kentucky.14
Tolliver, a restauranteur who sold, in addition to the nefarious “Malt Mead,” lemon sours and sodas, challenged the ordinance. The Court dismissed the city council’s argument that the statute was necessary to prevent some people from camouflaging alcoholic beverages within innocuous ones and declared the statute unreasonable and void:
The test in every case is: Is the prohibition ... of the sale of a particular *554article necessary to prevent the infliction of a public injury? It is not sufficient that the public sustains harm from a certain trade or employment as it is conducted by some engaged in it. Because many men engaged in the calling persist in so conducting the business that the public suffers, and their actions cannot otherwise be effectually controlled, is no justification for a law which prohibits an honest man from conducting the business in such a manner as not to inflict injury upon the public. Therefore the power of prohibition may not be invoked as to certain harmless drinks, merely because certain persons, under the guise of selling such drinks, may sell intoxicating liquors.
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[L]et us examine the ordinance. It specifies certain soft drinks which may be sold. The sale of all other soft drinks is prohibited. Among the number might be enumerated several soft drinks that are absolutely harmless. It will not do to say that the city council is the arbiter of public taste. It cannot prescribe what harmless drinks shall, or shall not, be sold. Its power to prohibit is confined to those drinks which are harmful or deleterious to the public health and morals. The ordinance before us is not restricted in its application. It prohibits the sale of many harmless drinks, and is so broad in its scope and so discriminatory in its character as to constitute an unlawful interference with the liberty of the citizen, which includes, not merely the right to acquire property, but the right to buy and sell it. That being true, we conclude the ordinance is unreasonable and void.15
It is established jurisprudence in this Commonwealth, therefore, that the legislature’s power to regulate a particular article under its police power rests on the presence, in whatever concentration, of a harmful substance. As hemp contains a quantity of THC, and Mr. Harrelson did not overcome the statute’s presumption of constitutionality and prove that THC is harmless, the state may validly prohibit its possession. Accordingly, I would reverse the decisions of the Court of Appeals, the circuit court, and the district court and remand this matter to the district court for further proceedings consistent with this opinion.
. Obra F. Traylor, "Patterns of State Taxation of Distilled Spirits With Special Reference to Kentucky,” 9 Quarterly Journal of Studies on Alcohol, pp. 585-592 (March, 1949).
. See, e.g., Powers v. Commonwealth, Ky., 90 Ky. 167, 13 S.W. 450 (1890) (upholding the constitutionality of an act which made it unlawful for "any person or persons to sell, barter, give, loan, or traffic in spiritous, vinous, or malt liquors, in any quantity whatsoever, within the county of Rowan....” Id.)
. See McNulty v. Toopf, 116 Ky. 202, 75 S.W. 258 (1903) (upholding the constitutionality of an ordinance “prohibiting the selling, dispensing or giving away of any spiritous, vinous or malt liquors, between the hours of 10:30 o'clock p.m. and 5 o’clock a.m.” Id.)', Commonwealth v. McCann, 123 Ky. 247, 94 S.W. 645 (1906) (upholding a statute providing: "Any person who shall, on Sunday, keep open a barroom or other place for the sale of spiritous, vinous, or malt liquors, or who shall sell or otherwise dispose of such liquors, or any of them, shall be find not less than $10.00 nor more than $50.00 for each offense.” Id.)
.See Commonwealth v. Price, 123 Ky. 163, 94 S.W. 32 (1906) (upholding an ordinance of the city of Madisonville which made it unlawful for any infant or female to go into or be in or drink intoxicating liquors in any saloon or place for sale of such liquors....” or for any *552tavern owner to allow an infant or female to remain on the premises for more than five minutes. Id.)
. Fermented apple juice, also known as “hop jack,” containing an average of between two (2) and eight (8) percent alcohol, less alcohol by concentration than most pre-prohibition ales or lagers. See Papazian, The New Complete Joy of Home Brewing, 2nd Edition, pp. 8-9, 161-165 (Avon Publishing, 1991);
. Town of Pikeville v. Huffman, Ky., 112 Ky. 360, 65 S.W. 794 (1901).
. Id. (emphasis added).
. “The noblest philosophy of life, since extremes must, perforce exist, is compromise. Temperance, then, is the truest medium between total abstinence and excess; and malt liquors, above all, are the medium between ardent spirits and water.” 1876 Brewers' Industrial Exhibition Essays on the Malt Liquor Question 16 (Francis Hart & Co. 1876).
. In the first decade of the 20th Century, the courts of various jurisdictions examined these low-alcohol beverages under various trade names in the context of statutes regulating “intoxicating beverages.” See, e.g. Commonwealth v. Henry, 110 Va. 879, 65 S.E. 570 (Va.1909) (“Malt Beverage” and “Small Brew,” which contained less than 2.25 percent alcohol); State v. Fargo Bottling Works Co., 19 N.D. 396, 124 N.W. 387 (N.D.1910) ("Purity Malt,” which contained 1.75 percent alcohol by volume); Sawyer v. Botti, 147 Iowa 453, 124 N.W. 787 (Iowa 1910) ("Justus beer” which contained less than 0.5 percent alcohol by volume); Gourley v. Commonwealth, 140 Ky. 221, 131 S.W. 34 (1910) ("Malt Mead”); Ex Parte Townsend, 64 Tex.Crim. 350, 144 S.W. 628 (1911) ("Haiwatha,” which contained less than 2 percent alcohol).
. 142 Ky. 820, 135 S.W. 290 (1911).
. Id.
. Id. at 291.
. 143 Ky. 773, 137 S.W. 509 (1911).
. Id. The ordinance provided for a five dollar ($5) licensing fee and a fine of between twenty five ($25) and one hundred ($100) dollars for noncompliance. In addition, it stated that ”[a]ny or all other proprietary or so-called soft drinks, except what is mentioned in this ordinance, are by this ordinance prohibited from being sold in said city.” Id. at 510.
. Mat 511.