An Arkansas law passed in 2023 that prohibits the sale of many hemp products will be allowed to take effect after the Eighth Circuit Court of Appeals lifted an injunction against it Tuesday (June 24).
Act 629 of 2023 prohibits the growth, processing, sale, transfer or possession of industrial hemp with certain concentrations of THC, a compound found in cannabis.
The state had been sued by plaintiffs Bio Gen, a Fayetteville-based hemp farm; Drippers Vape and Hemp; Cigarette Store, a Colorado-based company doing business as Smoker Friendly with 58 stores in Arkansas; and Sky Marketing Corporation, a Texas hemp products distributor doing business as Hometown Hero.
The plaintiffs cultivate, wholesale, distribute, and retail hemp plants and hemp-derived products in and out of Arkansas. They had claimed Act 629 destroyed their ability to cultivate hemp of any kind, created insurmountable confusion, and added a “sham dysfunctional” regulatory framework.
Circuit Judge Jonathan Kobes wrote the three-judge panel’s decision, which reversed an injunction by U.S. District Judge Billy Roy Wilson.
Wilson had placed an injunction on the state because he said the plaintiffs likely would succeed in certain facets of the case. The plaintiffs had argued that the federal Farm Bill of 2018, which legalized hemp containing less than 0.3% THC, preempted the state-based Act 629. He also had ruled they would likely succeed on their due process claim because Act 629 was too vague.
But Kobes wrote that Congress did not want to legalize hemp under the Farm Bill. Instead, it only wanted to facilitate state legalization of hemp if a state wanted to do so. States may take primary regulatory authority over hemp production after receiving permission from the U.S. Department of Agriculture, which Arkansas had done. He wrote that states are not required to use the federal definition of hemp and can institute more stringent regulatory requirements.
He also rejected the district court’s ruling that the law is too vague and noted the law does not prohibit continuous transportation of cannabis through the state, so it doesn’t have interstate commerce issues.
Attorney General Tim Griffin said in a press conference Tuesday that the Eighth Circuit will issue its mandate in three weeks or longer, bringing Arkansas’ ban back into effect. Legal challenges can continue.
“This is one of the most important, if not the most important victories, this office has had since I’ve been here primarily because this is a really serious problem that’s only growing,” he said.
Griffin said that when he became attorney general, he saw that toxic products with high levels of drugs were being sold with candy-like packaging that could appeal to children. Act 629, carried by Rep. Jimmy Gazaway, R-Paragould, and Sen. Tyler Dees, R-Siloam Springs, was meant to address that.
“You’re talking about almost an unlimited number of dangerous drugs,” Griffin said.
He said retailers who are selling the products, which he said is common, are violating the law.
“And you’ve got a few weeks to get the stuff out of the state because it’s going to go away one way or the other,” he said.
