Federal judge blocks state's new law banning Delta 8 THC products

A number of delta-8 and delta-9 products are shown in this undated file photo. The products were considered legal in Arkansas under the 2018 Farm Bill until Aug. 1, 2023, when Arkansas' Act 629 of 2023 banned the production and sale of products containing delta-8, delta-9 and delta-10 THC inside the state. (Dale Ellis/Arkansas Democrat-Gazette)
A number of delta-8 and delta-9 products are shown in this undated file photo. The products were considered legal in Arkansas under the 2018 Farm Bill until Aug. 1, 2023, when Arkansas' Act 629 of 2023 banned the production and sale of products containing delta-8, delta-9 and delta-10 THC inside the state. (Dale Ellis/Arkansas Democrat-Gazette)

Producers, marketers and consumers of Delta 8 THC products received some welcome news Thursday after a federal judge blocked the state from enforcing a law -- Act 629 of 2023 -- banning the sale of such products in the state.

U.S. District Judge Billy Roy Wilson issued the ruling in the wake of a motion hearing held Aug. 23 in federal court in Little Rock after a group of four cannabis-related businesses sued the state on the grounds that the law violated the U.S. Constitution's Commerce and Supremacy clauses.

Act 629, passed in the 2023 regular session of the General Assembly, sought to ban the production and sale of products containing Delta 8, Delta 9 and Delta 10 and other THC isomers inside the state of Arkansas. Such products have been legal federally since 2018 under provisions contained in the 2018 Farm Bill that removed hemp containing less than 0.3% dry weight Delta 9 THC as a controlled substance. According to federal law, hemp containing more than 0.3% dry weight Delta 9 is classified as marijuana and remains prohibited federally, despite 38 states -- including Arkansas -- having legalized marijuana for medical use and 21 of those states and the District of Columbia giving the OK for recreational use.

On July 31, the day before the state's ban on Delta 8 products went fully into effect, a group of hemp product marketers in Arkansas, Colorado and Texas filed suit in federal court in Arkansas seeking to overturn the law and asking the court to block enforcement through a temporary restraining order or a preliminary injunction while the lawsuit moves forward.

The lawsuit names Gov. Sarah Huckabee Sanders, Attorney General Tim Griffin, the directors of the Arkansas Department of Finance and Administration, the Tobacco Control Board, the state Department of Agriculture and the state Plant Board, and the 28 prosecuting attorneys of the state as defendants.

The federal complaint was filed on behalf of four hemp-related businesses: Bio Gen LLC of Fayetteville; Drippers Vape Shop LLC of Green-brier; The Cigarette Store LLC of Colorado, doing business as Smoker Friendly; and Sky Marketing Corp. of Texas, doing business as Hometown Hero. At the Aug. 23 hearing, plaintiff attorneys Abtin Mehdizadegan and Allison Scott of Little Rock argued that the law placed their clients in legal and financial jeopardy over the production and sale of products they said the federal government had deemed were legal under the 2018 Farm Bill.

Wilson denied motions by the state to dismiss the lawsuit and to grant Sanders and Griffin immunity from the lawsuit. In attempting to get the governor and attorney general excused from the lawsuit, Jordan Broyles with the attorney general's office argued at the Aug. 23 hearing that neither Sanders nor Griffin had the authority to enforce the law, a claim that Mehdizadegan called "offensive."

Mehdizadegan argued that as the state's chief law enforcement officer, Griffin is "a necessary component along the chain of enforcement" and that as governor, Sanders "directs the directors" and has an active role in enforcement of the law.

"Clearly," Wilson wrote in the ruling Thursday, "the proper vehicle for challenging the constitutionality of a state statute, where only prospective, non-monetary relief is sought, is an action against the state officials responsible for the enforcement of the law. Here, the Governor has a responsibility as chief executive for the enforcement of the criminal laws of the state, which are implicated here, and the attorney general has a specific role in Act 629."

Broyles also argued that the federal government lacked jurisdiction, saying that nothing in federal law prevents states from passing more restrictive legislation than what is contained in the farm bill.

Wilson agreed that the state can pass more restrictive laws pertaining to the production of hemp inside the state's borders but he said restricting transportation through the state is a violation of federal law. He called the law's allowance of the banned products' "continuous transportation" through the state lacked any definition of exactly how the term would be construed.

"Would an employee from a state like Tennessee that regulates and taxes hemp products like Delta 8 THC be subject to criminal liability when stopping for gas or staying overnight before reaching the final destination outside of Arkansas?" Wilson wrote. "I can't answer that question. Based on testimony at the hearing. Plaintiffs do not know, and I don't think anyone can, based on Act 629 as written."

Wilson said the plaintiffs' claim that the law is too vague for a person of reasonable intelligence to understand would likely succeed due to a number of terms in Act 629 such as "continuous transportation," "synthetic substance," and "psychoactive substances," which he said are sufficiently vague as to "confuse even an exceptionally intelligent reader."

"Additionally," Wilson wrote, "Section 10 of Act 629 provides that a hemp-derived product 'shall not be combined with or contain any of the following: ... Any amount of tetrahydrocannabinol as to create a danger of misuse, overdose, accidental overconsumption, inaccurate dosage, or other risk to the public.' What is a 'danger of misuse' or 'other risk to the public'? How do you quantify an 'overdose' or 'inaccurate dosage?' These terms are paired with, at best, fuzzy standards -- and record no explicit statutory definition -- making it next to impossible for the typical person to know what to do. If the person guesses wrong, the consequences are potential criminal punishment."

Wilson wrote that the plaintiffs stand a good chance of having the law overturned as "void for vagueness" and said if the law were allowed to be enforced, the plaintiffs stand a strong chance of irreparable harm through criminal sanctions, "namely, a credible threat of criminal prosecution that could affect Plaintiffs' ability to procure a license to grow or handle legal hemp as well as an untold amount of lost profits."

On the other hand, Wilson wrote, "potential harm to Defendants is negligible."

Wilson granted the preliminary injunction blocking the state from enforcing the law "until further order of this Court," and directed the defendants to "inform forthwith all the affected Arkansas state governmental entities of this injunction." He wrote that because the plaintiffs have shown a likelihood of success on the merits of their claims that challenged provisions of the law are preempted by federal law and are void for vagueness, a preliminary injunction at this stage is in the public interest.

"The public does not have an interest in the enforcement of a statute that Plaintiffs have shown likely violates the Constitution," Wilson wrote.

Griffin vowed to continue working to get the law implemented.

"I am disappointed in the ruling," Griffin said in a text message Thursday, "[and we are] considering all our options and will continue to aggressively defend the law to protect Arkansans from these dangerous drugs."

Mehdizadegan said Thursday that he was pleased with the ruling and is waiting to see what the next development in the case will be.

"I hope the AG's office finally chooses to stop insisting on the enforcement of decidedly unconstitutional laws," he said. "For a party that talks about small government, this seems to be pretty big government in ways that are very personal to a whole lot of people."