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September 7, 2023
4 min to read

Judge Grants Injunction Blocking Arkansas Delta 8 Ban

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Jim McDonald

Note

Sept. 7 update A federal judge today granted the plaintiffs a preliminary injunction, preventing the state from enforcing its ban on hemp-derived psychoactive cannabinoids while the case is decided. U.S. District Court Judge Billy Roy Wilson found that the plaintiffs are likely to succeed on the merits of their claim that Act 629 is preempted by the federal 2018 Farm Bill. The judge set a trial date for Aug. 27, 2024.

Aug. 3, 2023

A lawsuit filed Monday in a federal court challenges a new Arkansas law that bans the sale of hemp-derived cannabinoids like delta 8 THC. The law took effect a day later, on Aug. 1. The outcome of the lawsuit could affect other states that have banned or restricted hemp-derived cannabinoids.

The lawsuit, filed in the U.S. District Court for the Eastern District of Arkansas, challenges Act 629, which passed overwhelmingly in both houses of the Arkansas legislature and was signed into law in April 2023. The act prohibits sale and manufacture of various intoxicating hemp-derived cannabinoids in the state. The law also mandates a $5,000 annual license for wholesalers and retailers of hemp products, and imposes certain packaging restrictions.

The law makes illegal any product “derived from industrial hemp that was produced as a result of a synthetic chemical process that converted the industrial hemp or a substance contained in the industrial hemp into Delta-8, Delta-9, Delta-6a, 10a, or Delta-10 tetrahydrocannabinol including their respective acetate esters; and any other psychoactive substance derived therein.” It classifies these substances under Schedule VI of Arkansas’ Uniform Controlled Substances Act.

"The lawsuit claims Act 629 violates the U.S. Constitution’s commerce and supremacy clauses, and conflicts with the Farm Bill."

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Commercial delta 8 and delta 10 THC—and other THC variants sourced from hemp—are converted with heat or chemical catalysts from legal hemp-derived CBD. According to the 2018 federal Farm Bill, all hemp “derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers” are federally legal as long as they contain no more than 0.3 percent delta 9 THC. Last year, a federal appeals court confirmed that delta 8 THC is a legal hemp product.

The lawsuit claims Act 629 violates the U.S. Constitution’s commerce and supremacy clauses, and conflicts with the Farm Bill. According to the plaintiffs, the law restricts transport of federally legal hemp-derived products through Arkansas. The law also states that even legal hemp-derived products cannot be mixed with any amount of THC, which effectively bans products that meet the legal definition under the Farm Bill.

The plaintiffs also filed a motion asking the court for a temporary restraining order that would put implementation of the law on hold while the lawsuit’s merits are argued. On Tuesday, Judge Billy Roy Wilson ordered the defendants to respond to the motion on Aug. 8, according to the Northwest Arkansas Democrat-Gazette.

"A federal appeals court confirmed last year that delta 8 THC is a legal hemp product."

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The hemp-industry plaintiffs include a manufacturer, a distributor, retailers and wholesalers. Bio Gen LLC and Drippers Vape Shop LLC are Arkansas businesses, Smoker Friendly is based in Colorado but has 58 retail stores in Arkansas, and Sky Marketing/Hometown Hero CBD is based in Texas.

The lawsuit names as defendants the state, Gov. 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 all 28 Arkansas state judicial circuits.

Arkansas has had a medical marijuana program since 2016, but voters rejected a ballot measure last year that would have legalized recreational weed.

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Jim McDonald

Vaping since: 13 years

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Favorite flavors: RY4-style tobaccos, fruits

Expertise in: Political and legal challenges, tobacco control haters, moral panics

Jim McDonald

Smokers created vaping without help from the tobacco industry or anti-smoking crusaders, and I believe vapers have the right to continue innovating to help themselves. My goal is to provide clear, honest information about the challenges vaping faces from lawmakers, regulators, and brokers of disinformation. I’m a member of the CASAA board, but my opinions aren’t necessarily CASAA’s, and vice versa. You can find me on Twitter @whycherrywhy

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