Positive court rulings keep delta-8 on market in Arkansas, Texas – for now

Court rulings in Arkansas and Texas have buoyed the spirits of delta-8 THC producers, but the long-term future for the synthetic form of THC made from hemp is anything but certain.

In both states, production and sales of delta-8-laced snacks and candy are protected for now under a strict legal interpretation that highlights a conflict between state and federal laws for hemp. But changes expected at the federal level could reverse that, perhaps by the end of the year.

In Arkansas, a federal judge ruled that a state law that banned delta-8 is in conflict with the 2018 U.S. Farm Bill, which removed hemp from the federal schedule of controlled substances. A group of growers, distributors and retailers mounted the legal challenge to the ban on constitutional grounds.

Act struck down

The law at issue, Arkansas Act 629, narrowed the definition of hemp “to recriminalize the possession, manufacturing, transportation, and shipment of certain popular hemp-derived cannabinoid products,” according to the plaintiffs’ lawsuit in U.S. District Court in Little Rock.

Arkansas plaintiffs in the successful legal challenge are Bio Gen LLC of Fayetteville, and Drippers Vape Shop LLC of Greenbrier. Out-of-state plaintiffs are Sky Marketing Corp., which operates as Hometown Hero, of Austin, Texas, and The Cigarette Store LLC, Boulder, Colorado, which operates as Smoker Friendly. Their claims were filed against Arkansas officials including Gov. Sarah Huckabee Sanders and Attorney General Tim Griffin. 

In Texas, the state’s Third Court of Appeals rendered a similar judgment based on the same legal logic, setting aside a ban on delta-8 and other THC isomers that the Department of State Health Services (DSHS) had designated as Schedule 1 controlled substances. The debate over delta-8 in Texas has raged since at least 2021.

Window closing?

Despite the wins in Arkansas and Texas, proponents of delta-8 and other synthetic, psychoactive compounds found in edibles, which are made by putting hemp-derived CBD through a process in the lab, are likely to find the window on those products closing soon.

The U.S. Drug Enforcement Administration (DEA) has indicated it intends to change federal drug-control laws to ban highly concentrated synthetic THC products. The drug agency said in February that the products do not meet the federal definition of hemp and are therefore controlled substances.

Also the 2023 Farm Bill, now being debated, is likely to draw a more narrow definition of hemp that excludes such products. The measure is expected to be passed at the end of the year.

The delta-8 plague

State and local authorities across the country are working to reign in delta-8 THC and other CBD-based psychoactive compounds, which are not regulated by the Food & Drug Administration (FDA). The products have proliferated in convenience stores and other common retail outlets, where they are marketed to youth in packaging that often mimics well-known brands of snacks and candy. Many producers and sellers have received warnings from the FDA regarding the safety of the products.

Even some in the hemp business have suggested that the 2018 Farm Bill never intended hemp to be used to make psychoactive compounds and have criticized nefarious players they say are exploiting the 2018 Farm Bill’s language to sell highly potent synthetic THC products that are often rife with contaminants, inaccurately labeled, and marketed in manners that appeal to children.

Laws in conflict

Federal lawmakers failed to account for synthetic forms of THC produced from CBD when they legalized hemp through the 2018 Farm Bill. Producers have argued that because the Farm Bill made hemp and its downstream products legal, delta-8 is therefore also legal. In a strict interpretation of the Farm Bill, the U.S. Court of Appeals for the Ninth Circuit agreed last year, noting that federal lawmakers can correct that situation with further legislation.

Producers started making delta-8 THC products amid the drastically diminished fortunes of the CBD sector, where demand did not reach inflated expectations and oversupply caused prices to plunge by as much as 90% over the past four years. Some analysts have said at least 75% of the current supply of CBD is going into the production of unregulated delta-8 and other hemp-derived, high-producing products.