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Federal Judge Blocks Arkansas’ Delta-8 THC Ban

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MELISSA SCHILLER | SEPTEMBER 11, 2023


A federal judge has blocked Arkansas’ ban on delta-8 THC five months after Gov. Sarah Huckabee Sanders signed legislation into law to reclassify some hemp-derived psychoactive cannabinoids as Schedule VI substances in the state. Act 629, passed during Arkansas’ 2023 legislative session, banned hemp-derived delta-8, delta-9, delta-6a, delta-10 and delta-10a THC in the state, with the bill’s sponsors arguing that delta-8, in particular, was being marketed to children and sold at convenience stores where clerks did not verify customers’ IDs. The new law took effect Aug. 1 but has since been placed on hold following a Sept. 7 court ruling. Will Crystallization Technology Disrupt Traditional Extract Refinement?

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U.S. District Judge Billy Roy Wilson’s ruling last week stems from a lawsuit filed by four cannabis-related businesses claiming that the law violates the U.S. Constitution’s Commerce and Supremacy clauses, according to the Arkansas Democrat-Gazette. The plaintiffs, Bio Gen LLC; Drippers Vape Shop LLC; The Cigarette Store, doing business as Smoker Friendly; and Sky Marketing Corp., hemp product marketers located in Arkansas, Colorado and Texas, filed the lawsuit July 31 in federal court in Arkansas, the news outlet reported. The businesses asked the court for a temporary restraining order or preliminary injunction to block enforcement of the law while the case moves through the legal process. 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, the state Plant Board and the 28 prosecuting attorneys of the state were all named as defendants in the lawsuit, the Arkansas Democrat-Gazette reported. At an Aug. 23 hearing, Wilson denied the state’s motions to dismiss the lawsuit and to grant Huckabee Sanders and Griffin immunity from it, according to the news outlet. Abtin Mehdizadegan and Allison Scott, attorneys representing the plaintiffs, argued at the hearing that the law put their clients in legal and financial jeopardy over the production and sale of products they claimed are federally legal under the 2018 Farm Bill, the Arkansas Democrat-Gazette reported. Jordan Broyles, representing the state’s attorney general’s office, argued that nothing in federal law prohibits states from passing more restrictive laws, but Wilson said a provision in Arkansas’ law that restricts the transportation of the hemp-derived cannabinoids through the state does indeed violate federal law, according to the Arkansas Democrat-Gazette. Wilson wrote in his ruling that the plaintiffs have a good chance of getting the law overturned as “void for vagueness,” the news outlet reported, and he indicated that the plaintiffs also have a good chance of irreparable harm through criminal sanctions should the law be upheld. Wilson also noted in his ruling that “potential harm to Defendants is negligible,” according to the Arkansas Democrat-Gazette. In issuing his ruling, Wilson granted a preliminary injunction to block the state’s enforcement of the law, while Griffin indicated that he would continue working to implement it, the news outlet reported.

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