A federal appeals court ruled Arkansas can soon enforce its ban on delta-8 and other similar hemp-derived products, overturning a lower court order.
A three-judge panel on the U.S. Court of Appeals for the 8th Circuit sided with the state after four hemp-related businesses sued attempting to overturn a 2023 law that banning certain kind of psychoactive products, made with substances derived from hemp.
“This is one of the most important – if not the most important (victory) – that this office has had since I’ve been here,” Attorney General Tim Griffin said a news conference in Little Rock on Tuesday. “Primarily because this is a really serious problem that is only growing.”
In recent years, products containing delta-8, delta-9 and delta-10 have grown in popularity and have been marketed and sold at convenience stores and smoke shops around the state. In 2023, the state Legislature approved Act 629, banning the production, sale or transportation of intoxicating substance made from hemp through Arkansas.
In September 2023 a U.S. District Court judge issued a ruling blocking the state from enforcing the law, saying Act 629 was too vague, notably its prohibition on the transportation of hemp-derived products through Arkansas.
In the ruling issued on Tuesday, a three-judge panel on the on the U.S. Court of Appeals for the 8th Circuit said, “We also conclude Act 629 is not unconstitutionally vague and the district court abused its discretion when it issued a preliminary injunction based on the statute being void for vagueness.”
Griffin said Tuesday’s ruling means the state can enforce Act 629 in roughly “three, four, five weeks,” after the court issues its mandate.
The plaintiffs in the lawsuit are Bio Gen LLC of Fayetteville; Dippers Vape Shop LLC of Greenbrier; The Cigarette Store of Colorado, doing business as Smoker Friendly; and Sky Marketing Corp. of Texas, doing business as Hometown Hero.
The 2018 Farm Bill, also known as the Agriculture Improvement Act of 2018, legalized hemp and its derivatives, essentially preempting the state’s ban on delta-8, delta-9 and delta-10.
Abtin Mehdizadegan, an attorney representing the plaintiffs in the lawsuit, did not respond to a text message to comment on Tuesday’s ruling.
Delta-9 tetrahydrocannabinol, or THC, is the main psychoactive compound found in marijuana, while delta-8 and delta-10 are isomers that are also psychoactive.
While hemp is only allowed to contain trace amounts of THC under federal law, the cannabis industry has found way to synthesize the compounds from the plant and put them into gummies, vape pens and oils.
Arkansas lawmakers became concerned in 2023 claiming some convenience stores in the state were selling delta-8 products to kids and that ban was needed.
“These products are essentially recreational marijuana, and I am glad the court confirmed the state’s ability to ban them,” State Rep. Jimmy Gazaway, R-Paragould, a co-sponsor of Act 629, said in a statement. “Before our law, there was no regulation, no oversight, and no protections for consumers. Today’s ruling is a victory for Arkansans.”
For her part, Gov. Sarah Huckabee Sanders called Tuesday’s ruling “a huge victory for the safety of every Arkansan – and especially our kids.”
“Dangerous, unregulated synthetic marijuana products like Delta-8 have no place in our state, and today’s ruling allows our ban on them to go into effect,” she said.
Melissa Fults, a medical marijuana patient advocate, said she has concerns about unregulated delta-8 products often sold at convenience stores and smoke shops, saying often consumers don’t know what is in the product they’re buying or what the dosage is.
She said she opposed banning delta-8 products, “but I also have a problem with just leaving it on the shelves and allowing it to be unregulated and untested.”
Information from Dale Ellis of the Arkansas Democrat-Gazette contributed to this story.
A federal appeals court ruled Arkansas can soon enforce its ban on delta-8 and other similar hemp-derived products, overturning a lower court order. Read More
