Did a Federal Court Order Just Legalize THCa and Delta-8 THC in All 50 States?
A federal court in Arkansas just issued a landmark ruling enjoining enforcement of a recently enacted hemp law. Due to its broad findings, the ruling arguably makes this the single most important hemp case to date and one that every participant in the hemp industry should read. The order itself only applies to the Arkansas law. However, the court’s findings have sweeping implications for hemp laws in states across the country. It is not an overstatement to say that every state law that defines hemp differently from federal law or that restricts downstream hemp products based on anything other than their delta-9 THC concentrations is now in jeopardy of being struck down as unconstitutional. This is an incredible victory for the hemp industry, a powerful vindication of the lawful status of hemp products, and an enormous step forward in the overall progress of cannabis legalization.
In this blog post, I will summarize and discuss the Court’s key findings. You can read the entire order below. Kudos and thanks to the plaintiffs, Bio Gen LLC, Drippers Vape Shop LLC, The Cigarette Store LLC, and Sky Marketing Corporation dba Hometown Hero, and to the legal team led by Abtin Mehdizadegan of Hall Booth Smith PC for their hard work and success. It is difficult to understate the importance of this ruling.
Background and Summary:
Several hemp companies in Arkansas (the “Plaintiffs”) filed a lawsuit against the state seeking an injunction prohibiting enforcement of Senate Bill 358, enacted on April 11, 2023 as “Act 629” (the “Act”), which criminalized all hemp products “produced as a result of a synthetic chemical process” and “[a]ny other psychoactive substance derived therein.” The Plaintiffs contend that the Act is preempted (ie, superseded) by the federal 2018 Farm Bill and also that its provisions are unconstitutionally vague and thus void. The Court agreed and entered an injunction barring enforcement of the Act.
Ruling:
In its ruling, the Court made three important findings: (1) that the Act is preempted by federal law under the principle of “conflict preemption”, (2) that the Act is preempted by federal law under the principle of “express preemption”, and (3) that the Act is unconstitutionally vague and thus void. I should note that I am being somewhat general about the ruling since this article is not intended to get bogged down in technical legal issues and explanations. To be clear, the court’s order is specific to the Plaintiff’s request for an injunction, and as such the Court found that “there is a substantial probability [the Plaintiffs] will succeed at trial” on the above issues, which is the legal standard for receiving an injunction. The case has not concluded. Additionally, the court made some additional findings about standing and a private right to sue under the 2018 Farm Bill that are important but are technical and of interest mostly to lawyers. I will not discuss them in this article so that I can focus on the main points.
The Court’s first two findings are based on the legal doctrine of preemption. As the court states, “the federal preemption doctrine stems from the Constitution’s Supremacy Clause, which states that laws of the United States made under the Constitution are the supreme law of the land. State laws that interfere with, or are contrary to the laws of congress, made in pursuance of the constitution are invalid or preempted.” There are several types of preemption. The court found that two are applicable to this case, “conflict preemption” and “express preemption”. Although similar in their effect, they are based on different premises. The court’s third finding is based on a separate legal doctrine referred to as “void for vagueness” under the due process clause of the Constitution. I will address each of these findings by first letting the court speak for itself and then providing follow-up commentary.
1. Conflict Preemption. The Court found that the 2018 Farm Bill controls the definition of “hemp” and removes it from the list of controlled substances. Because the Act does precisely the opposite, federal law preempts it. The Court states: “The 2018 Farm Bill removes “hemp” from the definition of marijuana in the Controlled Substances Act. Under the 2018 Farm Bill’s standard, the only way to distinguish controlled marijuana from legal hemp is the delta-9 THC concentration level. Additionally, the definition extends beyond just the plant to “all derivatives, extracts, [and] cannabinoids. The definition covers downstream products and substances, if their delta-9 THC concentration does not exceed the statutory threshold.” The Court went on to state: “Defendants contend that the products at issue here are Schedule I substances because they are “synthetic.” However, the 2018 Farm Bill’s definition of hemp does not limit its application to [the] method “derivatives, extracts, [and] cannabinoids” are produced. Instead, the definition covers all downstream products if they do not cross the 0.3 percent delta-9 THC threshold…. Under the 2018 Farm Bill, Arkansas can regulate hemp production and even ban it outright if it is so inclined. The legislature seems to have tried to keep the parts of the program it likes (purely industrial uses) and eliminate the parts it doesn’t (human consumption). That may very well be an acceptable distinction as it applies to the state’s criminal code, but changing definitions in a federal program, which it has already fully joined, is not a constitutionally valid way to do it.” (emphasis added)
My Commentary: This finding is important not only because it reiterates that the delta-9 THC concentration is the sole metric for distinguishing lawful hemp from unlawful marijuana, including a so-called but clearly erroneous distinction based on so-called “synthetic” cannabinoids (something we have stated repeatedly for a long time), but also because it applies equally to “downstream products”. This means that the delta-9 THC metric does not only apply to hemp biomass or floral material, but also to “all downstream products” made with hemp. In other words, not only is the legal status of hemp biomass and floral material based on solely on its delta-9 THC levels but this metric also applies to all products made from it, specifically including products that contain intoxicating and synthetic cannabinoids other than delta-9 THC (ie, delta-8, delta-10, HHC, THCP, etc.) Additionally, attempts by states (not to mention the DEA) to impose a “post-decarboxylation” testing method to post-production hemp and hemp-products is also presumably unconstitutional as an impermissible redefining of hemp beyond the 2018 Farm Bill definition. If applied to other state laws, this finding could dramatically open the market for THCa hemp into states where it is currently deemed unlawful.
2. Express Preemption. The Court states: “The anti-preemption language Defendants cite specifically references more stringent in-state regulation only as to the production of hemp, which means that Arkansas may continue to enforce laws regarding the growing of hemp within its borders, but not its interstate transportation…. The 2018 Farm Bill clearly provides that states may not pass laws that interfere with the right to transport hemp in interstate commerce—including hemp derivatives like Plaintiffs’ products at issue here—that have been lawfully produced under a state or Tribal plan or under a license issued under the USDA plan.”
My Commentary: The court made the often overlooked point that Arkansas, and any state, can regulate the “production” (ie, “growing” or “cultivation”) of hemp more stringently than federal law; however, a state may not pass laws that restrict interstate commerce in hemp products, including hemp derivatives, from lawfully produced hemp. Combined with the conflict preemption findings discussed above, it is clear that a state may impose restrictions on hemp production, but not on any other aspect of the hemp supply chain, including downstream products made from hemp, regardless of whether or not they are “synthetic”, “intoxicating”, or otherwise do not meet the state’s hemp laws or regulations.
3. Void for Vagueness. The Court states: “The Due Process Clause dooms certain laws that are too vague. A law crosses that threshold when it “either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. Act 629 contains terms that would confuse even an exceptionally intelligent reader. Specifically, “continuous transportation”, “synthetic substance”, and “psychoactive substances” are vague, and are not defined in the statute. Additionally, 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.”
My Commentary: This finding undercuts the recent practice by Arkansas and a large number of state legislatures of restricting and regulating hemp and hemp products based on vague and confusing terms like “synthetic” and “psychoactive”. I have called the regulation of hemp products based on their “psychoactivity” a “fool’s errand” for precisely this reason and am especially happy that the court made this finding. Under the Court’s rationale these terms may not be employed by state legislatures and regulators to restrict hemp and hemp products.
Key Takeaways:
For the hemp industry in Arkansas, this is an unqualified grand slam. The court enjoined enforcement of the Act in its entirety, reopening the state’s previously flourishing hemp market. Additionally, and perhaps more importantly, the court’s findings have significant implications for the hemp laws of every state. Although the court’s ruling does not directly affect the laws of other states, it creates a roadmap for attacking state laws that restrict hemp, hemp derivatives, and hemp products, including THCa, D8, D10, HHC, THCP, and THCa hemp flower on a number of legal grounds. This is welcome news, particularly in the wake of many states enacting laws that unconstitutionally restrict and prohibit hemp products that are clearly lawful under the 2018 Farm Bill. It will be exciting to watch this play out, particularly as we look forward to enactment of the next Farm Bill.
Here is a copy of the court order:
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Contact us if you have questions about this ruling, its implications, or hemp and cannabis generally.
September 8, 2023
Rod Kight is an international cannabis lawyer. He represents businesses throughout the cannabis industry. Additionally, Rod speaks at cannabis conferences, drafts and presents legislation to foreign governments, is regularly quoted on cannabis matters in the media, and is the editor of the Kight on Cannabis legal blog, which discusses legal issues affecting the cannabis industry. You can contact him by clicking here.
This is a fantastic ruling. I’ve been following some cases in PA that haven’t gone to court as of yet but I expect this ruling will impact those cases. On the thca flower side I’m still perplexed on how to sell it. I’ve purchased packaged thca hemp flower from several sources and had all of it tested and the results were all .6 to .9%. The packaging says its under .3% but my testing shows otherwise. My fear as a store owner is that if for some reason we were raided and had thca flower in stock that tested over .3% that we would be liable for selling marijuana vs hemp flower.
Exactly. If THC content is the yardstick, THCA is problematic. THC spontaneously decarboxylates so that if the plant was ever 0.3 % THC, it wouldn’t be that low for very long. When I tested a recently harvested sample, the result showed 20% of the THCA had converted to THC.
Howard- The “yardstick” for post-production hemp is delta-9 THC. I don’t know that THCa “spontaneously” decaboxylates; however, you are correct that it does decarboxylate when heated, which is a valid concern. -Rod
How does this apply when the law states it must account for post-decarb levels? Legally at that point for state laws at least the store would be selling marijuana, even if d9 levels were legal. There have been a couple of raid in the Houston area because of this.
Matthew- I respond to this comment in response to your other similar comment. -Rod
all of its hot especially when tested by any state crime lab. People are selling flower with a piece of paper (coa) that won’t match the crime labs
Andrew- You are correct that state crime lab testing methods, which usually involve decarboxylating the THCa, are a serious concern. The obvious legal response is that the crime labs create illegal marijuana from legal hemp (ie, the crime labs literally create the molecule they are looking for). This is called evidence tampering. Unfortunately, this is an area of law that is widely misunderstood and I strongly encourage my clients to have systems in place so that we are prepared to defend against state crime lab tests of hemp that erroneously determine that it is marijuana. -Rod
But the federal law for hemp says you must account for post decarb THC. This has been leading to arrest and possible prosecutions in Texas
Matthew- You raise an important issue, which is widely misunderstood. (By the way, this is in response to this comment and the similar one you made earlier in the day.) Federal law requires post-decarboxylation testing during hemp production. Once the hemp has passed that test and been harvested the test no longer applies and the sole metric for distinguishing lawful hemp from unlawful marijuana is the delta-9 THC concentrations. I discuss this issue at length, with legal citations, in an article you can read by clicking here. -Rod
Thomas- Yes, it is a really good ruling for the hemp industry (and the cannabis industry in general). The issue you raise is important and I encourage verifying that the COAs are for the actual product, that they are current, and calling the lab to confirm that they are not fraudulent. -Rod
Thanks Rod, my concern is when the lab says the coa is legit, it means they did perform a test for the supplier but the results don’t match my test results.
This has to help shake up the next farm bill in a good way you’d think.
Yes, I hope so. -Rod
Thank you for always posting so quickly and accurately on these issues.
Thanks, Amy. I always appreciate your kind comments. -Rod
“DID A FEDERAL COURT ORDER JUST LEGALIZE THCA AND DELTA-8 THC IN ALL 50 STATES?
No and no. The police can invoke other laws (bath salts) to persecute the cannabis trade with regard to these molecules, and the legislatures can craft legislation that cites these other laws. The DEA has control of its policies and thus regulates this arena only subject to Congressional or Presidential intervention, and that rarely happens. The re-scheduling RECOMMENDATION by HHS is non-binding.
Here is an extract that exemplifies how these policies are deliberated:
“The Synthetic Drug Abuse Prevention Act is part of the FDA Safety and Innovation Act of 2012, signed into law by President Obama. The law permanently places 26 types of synthetic cannabinoids and cathinones into Schedule I of the Controlled Substances Act (CSA). It also doubled the maximum period of time that the Drug Enforcement Administration (DEA) can administratively schedule substances under its emergency scheduling authority, from 18 to 36 months.”
“The Controlled Substance Analogue Enforcement Act of 1986 allows many synthetic drugs to be treated as controlled substances if they are proven to be chemically and/or pharmacologically similar to a Schedule I or Schedule II controlled substance.”
https://obamawhitehouse.archives.gov/ondcp/ondcp-fact-sheets/synthetic-drugs-k2-spice-bath-salts
Lmfao, see you go assuming it’s a synthetic…. it’s not.
Thanks for your comments, Howard. Although the DEA has a lot of power when it comes to regulating controlled substances, hemp is not a controlled substance and the DEA must comply with the law as set forth in the pertinent statutes and court rulings. -Rod
Yes, Howard is bringing up outdated information. The Farm Bill decriminalized those compounds if they are found in hemp or extracted from hemp. But I have the same concerns as Thomas has, which is the instability of the THC molecule over time. THCA degrades to THC with both heat and time. Then the THC breaks down to CBN, not to mention other cannabinoids. So if something tests at 0.28%THC at the time of harvest, it will go over this limit after handling, packing, shipping, and storage. And by the time it gets to the retailer, it’s over the limit. for THC to CBN, I think the conversion rate is about 16% per year? The same could be assumed for THCA to THC. The fact that there are valid arguments in defense of the retailer isn’t much comfort when they’re facing the expense and stress of criminal prosecution based on holding a THCA product with over 0.3% THC with their freedom at stake. Even if they win, it could cost millions to defend themselves. This is a frighteningly ambiguous situation.
Thanks for your comment. You bring up good points. With respect to decarboxylation and degradation of THCa and THC, this does occur naturally. The rate/timing is based on a number of factors, and it is a good idea for distributors to take them into consideration. In particular, flower should be transported and stored in cool temperatures. Additionally, I appreciate your comments about retailers facing criminal charges. I always advise my clients that THCa hemp is risky at this point in time and the ways to mitigate this risk. -Rod
Rod, it seems you tend to leave the most important part of this conversation out of your analysis… cultivation. As a cultivator, we are restricted by total THC under the farm bill. THCa is actually the largest part of the equation when determining compliance. D9 is typically a much smaller value. Decarbed or not, type 1 or 2 cannabis (high THCa) will never pass a 30 day preharvest (you had an article with a grower that claimed they did, but the samples they used were clearly from different plants/plots). The end result is we have this nice loop hole on the consumer end, but not on the producers. This loophole is giving black market cannabis a legal outlet and pushing the licensed hemp growers out of business. While the consumers likely don’t really care, is that really what was intended by the legal system/gov? Doesn’t it seem likely they will repair this gaping hole in the process? I have to think they will before too long. If they don’t, then they have entirely given up on the “farm” part of the farm bill. Go team.
Speaking as a consumer, I do care if legitimate hemp producers get pushed out by “bad actors” or by companies passing off legacy market marijuana as THCA flower.
1. I like CBD flower. It’s a product that I think many people would enjoy if they gave it a chance. I also believe it’s a positive choice for health.
2. Legacy market marijuana has safety concerns. Recently the Canadian government found that 90% of unregulated marijuana contains pesticides that are banned from regulated markets. Unregulated marijuana can also contain mold and fungi. Though I personally believe that the concern for laced marijuana is overstated as a fear tactic, it can definitely happen.
3. Bad actors prioritizing profit over their customer’s safety and the overall success of the hemp industry should not be rewarded for their actions.
My two cents.
Andy- Thanks for sharing your thoughts. No one wants bad actors pushing out legitimate hemp producers. This is one of the reasons I make some of my legal analyses public via my blog. -Rod
I have a hemp shop in Alabama that was raided and shut down. We need all the help we can get fighting this case. Please contact me if you can assist. [email protected]
Shawn- Thanks for your comments. I represent a number of producers and understand your concerns. Fortunately, some producers (including many of my clients) are able to cultivate hemp that will pass the required pre-harvest “post-decarboxylation” test and, upon harvest, drying, curing, trimming, etc. have buds that are high in THCa but with delta-9 THC concentrations that do not exceed 0.3%. This benefits both the consumer an the cultivator. -Rod
So, what does this do for previously passed legislation in states such as Colorado, who first banned any hemp derived product containing D8, and more recently went further in banning any product with intoxicating cannabinoids?
Good question. I think we will see several lawsuits against states in the wake of this ruling. -Rod
Thanks for taking the time to break this down, Rod. One question: In the post, you say that “attempts by states (not to mention the DEA) to impose a ‘post-decarboxylation’ testing method to post-production hemp and hemp-products is also presumably unconstitutional as an impermissible redefining of hemp beyond the 2018 Farm Bill definition.”
However, the Farm Bill, in discussing requirements for State and Tribal plan, says that a State or Tribal plan shall include “a procedure for testing, using post-decarboxylation or other similarly reliable methods, delta-9 tetrahydrocannabinol concentration levels of hemp.” I’d appreciate your insight here as I feel like I might be missing something. Thank you.
Jonathan- Good question. This is a widely misunderstood issue. As I describe in an article you can read by clicking here, the Farm Bill’s requirement for “post decarboxylation” testing solely applies to hemp production, not to post-production hemp and hemp products. -Rod
I would add on, if you read the 2018 Farm Bill and the final USDA rules very strictly…the testing method must be able to calculate the total potential THC and have test results that show what that amount would be, but the federal definition of hemp – including the CSA carve out- is restricted to D9. Happy to talk about this more offline with either of you Rod or Jonathan.
Hi, Andrea. Thanks for sharing. I agree with you. -Rod
I know someone facing felony charges right now for having two pounds of cannabis concentrate in Oregon. It was actually THCa they didn’t know during the time of detainment and confiscation. They admitted it was cannabis THC concentrate. I wonder if this ruling can help them?
This is a frustrating (and stressful) situation. As I always tell my clients, THCa hemp is currently the riskiest thing you can distribute in the entire cannabis (ie, hemp and marijuana) industry. This is primarily due to confusion regarding its legal status and the proper testing method to apply. The Arkansas ruling may help, although the laws of the state in which the person was charged will be the most important. We do not practice criminal law, but we do advise criminal lawyers regarding hemp-specific issues, including THCa. This person’s criminal lawyer can contact us and I will be happy to discuss the case with him/her. Thanks for reading and commenting. -Rod