Hemp industry argues in favor of intoxicating hemp products

The Hemp Industries Association told the Eight Circuit that Arkansas should not be able to ban intoxicating hemp because these products are legal under the 2018 Farm Bill. The 22-page brief was firm that despite various marketing names attached to hemp products, they were still legal as defined by the Farm Bill.

Last year, Arkansas banned intoxicating products such as delta-8, delta-9, and delta-10 vape cartridges and edibles. Green Market Report reported in September that Judge Billy Roy Wilson ruled that Arkansas Act 629, passed by the legislature, was likely to be found unconstitutional in an upcoming trial, and issued a preliminary injunction barring the state from enforcing it, the Arkansas Democrat Gazette reported.  Wilson found that the law likely runs afoul of the U.S. Constitution’s Dormant Commerce Clause and the 2018 Farm Bill.

HIA wrote and submitted the brief as a friend of the court. It leaned heavily on the argument that these hemp products were already declared legal and would harm farmers who are filling the demand for the products.

Arbitrary metric

The brief targeted the definitions Delta-8 and Delta-10 versus the regulated Delta-9 cannabis products and specifically pointed out the 0.3% measurement of THC as key to its argument.

The brief stated,

If the delta-9 THC concentration in harvested hemp or a hemp product does not exceed 0.3% delta-9 THC by dry weight, then it is not a controlled substance under federal law. If harvested hemp or hemp product is above .3% delta-9 THC on a dry weight basis, it is marijuana. While this sole legal metric is completely arbitrary, this arbitrary metric has acted as a North Star to American farmers and other entrepreneurs for the last six (6) plus years as they navigate the volatile fields of rebuilding an entire industry from the ground up.

The HIA argued the Farm Bill pegged the legality of low-THC cannabis, which it redefined as “hemp,” to its concentration of delta-9 THC, and therefore that all other compounds derived from low-THC hemp, such as delta-8 synthesized from CBD, must also be considered legal under federal law.

The HIA also took care to state that its hemp products shouldn’t be confused with illegal compounds like “spice,” which is a synthetic product designed to mimic the high of THC cannabis. The DEA has stated that state public health and poison centers have issued warnings in response to adverse health effects associated with abuse of herbal incense products containing these synthetic cannabinoids.

Hemp-synthesized intoxicant

The brief also took a slight dig at the American Trade Association for Cannabis and Hemp‘s (ATACH) for coining the term “hemp synthesized-intoxicant” (HSI). The HIA said that while ATACH thinks intoxicating hemp products are a threat to public safety, the DEA recently added six new cannabinoids to the Schedule I list of controlled substances and none were hemp-derived cannabinoids.

ATACH filed its own brief with the Eight Court of Appeals and contradicted what the HIA argues. It states,

HSIs are not “derivatives” of hemp within the meaning of the Farm Bill. They are controlled substances that are often more potent than marijuana, with chemical structures and psychoactive effects that differ from non-intoxicating hemp and its organic compounds.

ATACH argues that Congress never intended for psychoactive products to be a part of the 2018 Farm Bill. It also says in its brief that, “Manufacturers of HSIs game the definition of hemp by extracting CBD or other nonintoxicating cannabinoids from compliant hemp plants and converting those organic materials into new chemical substances that are sometimes significantly more intoxicating than any currently found in legal cannabis markets.”

The ATACH says that hemp-derived CBD is vastly different from synthetically derived delta 8-THC. It believes that these products are effectively a “‘designer drug’ synthesized from hemp-derived CBD and not extracted from naturally grown cannabis.

Internal conflict

The competing briefs both from non-profit trade groups within the cannabis industry demonstrate how divisive the issue has become. ATACH said on its website that it has taken a strong position in favor of states’ ability to regulate, guided by the foundational principle of legalization which is that states have the right to establish state-level regulatory frameworks for cannabis and hemp which must be protected as a matter of law, irrespective of how a state ultimately decides to exercise this power.



Debra Borchardt

Debra Borchardt is the Co-Founder, and Executive Editor of GMR. She has covered the cannabis industry for several years at Forbes, Seeking Alpha and TheStreet. Prior to becoming a financial journalist, Debra was a Vice President at Bear Stearns where she held a Series 7 and Registered Investment Advisor license. Debra has a Master's degree in Business Journalism from New York University.

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