Arkansas Hemp Firms File Suit Against Delta-8 THC Ban

A group of hemp businesses has filed a legal action challenging a new Arkansas law that bans hemp-derived psychoactive cannabinoids including delta-8 THC, arguing the statute violates the 2018 Farm Bill’s provisions that legalized hemp agriculture. The lawsuit, which was filed in federal court in Little Rock on Monday by four hemp businesses, seeks an injunction blocking Act 629, a law banning hemp-derived psychoactive cannabinoids that went into effect on August 1.

Act 629 bans the production and sale of products containing delta-8, delta-9 and delta-10 THC and other variations of the cannabinoids inside the state of Arkansas. Such products have been legal under federal law since 2018, when that year’s Farm Bill legalized hemp with less than 0.3% delta-9 THC. Despite their low delta-9 THC content, other psychoactive cannabinoids can be extracted from hemp, and hemp-derived CBD can be processed into psychoactive cannabinoids in a laboratory.

The four plaintiffs in the case include a manufacturer, wholesaler, distributor and retailer of hemp products that would be affected by the ban. They are asking the court to block Act 629, arguing that the statute does not comply with the U.S. Constitution’s commerce and supremacy clauses and is a violation of the 2018 Farm Bill.

“Plaintiffs have been, and will be, harmed by Act 629,” the complaint reads, according to a report from the Northwest Arkansas Democrat-Gazette, “as they are unable to transport in and through Arkansas hemp-derived cannabinoid products that have been declared legal under federal law.”

Federal Court Ruled Delta-8 Is Legal In 2022

Last year, the federal Ninth Circuit Court of Appeals issued a ruling in a trademark case in which the legality of delta-8 THC was a key factor. The court confirmed that delta-8 THC is legal under the 2018 Farm Bill.

“Regardless of the wisdom of legalizing delta-8 THC products, this Court will not substitute its own policy judgment for that of Congress,” the appellate court wrote in its ruling. “If … Congress inadvertently created a loophole legalizing vaping products containing delta-8 THC, then it is for Congress to fix its mistake.”

The plaintiffs in the case are Bio Gen, LLC of Fayetteville; Drippers Vape Shop, LLC of Greenbrier; The Cigarette Store LLC of Colorado, doing business as Smoker Friendly; and Sky Marketing Corporation of Texas doing business as Hometown Hero. Drippers is a retailer of hemp products, including non-psychoactive CBD as well as hemp-derived psychoactive substances Delta-8 and Delta-9 THC, and has stores in the communities of Greenbrier, Cabot, Hot Springs, El Dorado and Benton, according to a report from the Arkansas Times.

The named defendants in the lawsuit are the state of Arkansas, Governor Sarah Huckabee Sanders, Attorney General Tim Griffin, the Arkansas Department of Finance and Administration, the Arkansas Tobacco Control Board, the Arkansas Department of Agriculture, the State Plant Board and the prosecuting attorneys of the state’s 28 judicial circuits.

Abtin Mehdizadegan, the lead attorney for the plaintiffs, says that his clients tried to avoid legal action before Act 629 was signed into law.

“Our suit asks the federal court in the Eastern District of Arkansas to enjoin the entirety of Act 629 because it unconstitutionally narrowed the definition of hemp-derived products in violation of the 2018 Farm Bill and impermissibly restricted the transportation and shipment of these products,” Mehdizadegan wrote in an email. “Before the bill was signed into law, we had lengthy dialogues with the defendants during the 2023 legislative session as the bill was making its way through the legislative process.” 

“We also testified before a House Subcommittee to explain the constitutional infirmities in the initial draft of Act 629,” Mehdizadegan continued. “At the same time, we remain ready and willing to continue those discussions and would invite the State to meet us at the table to arrive at a sensible resolution. We do not oppose all forms of regulation and would support sensible policies that appropriately treat hemp-derived products for what they are: as an agricultural commodity.”

Cynthia Cabrera, chief strategy officer at Hometown Hero CBD, one of the plaintiffs in the case, said that Arkansas’ ban on hemp-derived cannabinoids would harm small businesses and hamper the growth of the state’s hemp industry.

“Mom-and-pop farmers, manufacturers, and retailers have put their life blood into building legacy businesses around a federally legal product,” Cabrera said in a statement to High Times. “Businesses like Hometown Hero invested in Arkansas in part relying on the state’s declared public policy to position itself at ‘the forefront of industrial hemp production, development, and commercialization.’ And overnight, Act 629 turned farmers into felons and retailers into drug dealers—all in violation of federal law. Ultimately, we would like to see reasonable regulation that allows businesses to grow and thrive while allowing adult consumers access to safe, legal hemp-derived products.”

Act 629 also includes provisions to regulate psychoactive hemp-derived cannabinoids in the event that the ban is struck down by the courts. Under the regulatory plan, wholesalers, distributors and retailers of the products would be required to obtain a permit from Arkansas Tobacco Control at a cost of $5,000 per year. Psychoactive cannabinoids derived from hemp would be legal, but the statute would prohibit mixing the compounds with additives such as liquids, sweeteners or other non-hemp products. The plaintiffs of the lawsuit are also challenging the regulatory plan, arguing that the rules put unreasonable burdens on them and amount to a “regulatory taking” of their legal property that makes it unusable.

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