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.
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.
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