Eighth Circuit upholds Arkansas hemp ban

(CN) — An Eighth Circuit Court of Appeals panel on Tuesday overturned a preliminary injunction blocking Arkansas’s strict regulations on hemp-derived products, dealing a blow to the state’s hemp industry.

The panel ruled that Arkansas’ law, which bans certain psychoactive hemp compounds, does not conflict with federal law and is not unconstitutionally vague.

The three-judge panel established that the U.S.’s 2018 Farm Bill allows states to impose stricter hemp regulations — even outright bans — as long as they do not obstruct interstate transportation of compliant hemp.

“The text does not support Bio Gen’s claim that Congress intended to ‘federally protect hemp’ and coercively mandate nationwide legality … just because states may legalize hemp under the 2018 Farm Bill does not mean they must,” U.S. Circuit Judge Jonathan A. Kobes, a Donald Trump appointee, wrote for the panel.

Chief U.S. Circuit Judge Steven M. Colloton, an appointee of George W. Bush and U.S. Circuit Judge James B. Loken, a George H.W. Bush appointee, joined Kobes on the panel.

The decision reverses a September 2023 ruling by U.S. District Judge Billy Roy Wilson, who had sided with hemp businesses arguing that Arkansas’s restrictions violated the 2018 Farm Bill, which legalized hemp containing less than 0.3% THC.

Those businesses, like Bio Gen, claimed in their suit that the state’s crackdown on Delta-8, Delta-9, and Delta-10 THC products would devastate their businesses and expose them to criminal penalties.

The court upheld Arkansas’ exemption for “continuous transportation” of federally legal hemp through the state, dismissing claims that the term was too vague.

“The United States Supreme Court has said that a ’temporary pause’ does not remove a shipment from continuous interstate commerce: as long as there is a ‘practical continuity of movement’ the goods remain in the stream of interstate transportation,” Kobes wrote. “We predict the Arkansas Supreme Court would interpret ‘continuous transportation’ consistent with our federal constitutional case law to avoid interpreting Act 629 in a way that would contravene the scope of Congress’s express preemption.”

The panel also ruled that Governor Sarah Huckabee Sanders and Attorney General Tim Griffin could not be sued over the law, as they lack direct enforcement authority under Act 629. This shields them from legal challenges under the Ex parte Young doctrine, which permits lawsuits against state officials only if they play a key role in enforcing disputed laws.

In a related news conference Tuesday, Griffin said the law was written with public health and safety in mind after several minors reported side effects from consumption.

“You’re talking about almost an unlimited number of dangerous drugs … and who knows what’s in this stuff half the time,” Griffin said, adding the plaintiff’s preemption claim was bogus and Wilson’s injunction was harmful. “The Eighth Circuit has defined what the federal law is and they have said we can make it illegal and we have.”

Griffin warned retailers in the state they may have a grace period of a few weeks to stop selling hemp products and “get the stuff out of the state.”

“This is one of the most important victories since I have been here, primarily because this is a really serious problem that is only growing,” he said. “Our hands have been tied and they’re not anymore.”

In a statement, the governor said the decision was a “huge victory.”

“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,” Sanders said.

Representatives for the plaintiffs did not immediately return requests for comment.

The case drew attention due to Arkansas’ aggressive stance against hemp products that lawmakers linked to health risks, including hospitalizations of children who consumed THC-infused edibles.

During oral arguments last September, state lawyers defended the law as a necessary public health measure, while industry attorneys warned it would force farmers to destroy crops and disrupt interstate commerce.

The Eighth Circuit panel’s decision clears the way for Arkansas to enforce its hemp restrictions, though legal challenges may continue in lower courts. For now, the ruling reinforces states’ ability to regulate hemp more strictly than federal law — a precedent that could influence similar battles nationwide.

On Monday, Texas Governor Greg Abbot vetoed a similar law in Texas, claiming a blanket ban would be too disruptive to the industry, customers and patients. According to the National Cannabis Industry Association, Delta-8 THC Is banned in 17 states and severely restricted in seven more.

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