Delta 8 products under fire again as U.S. Court of Appeals reverses lower court’s decision

A form of cannabis that was banned in Arkansas, then unbanned, is now set to be banned again after a ruling from the U.S. Court of Appeals.

Attorney General Tim Griffin issued the following statement after the United States Court of Appeals for the Eighth Circuit reversed a lower court’s decision to enjoin Act 629 of 2023.

“Today’s ruling isn’t just a win for Arkansas, it’s a win for common sense and the rule of law. If you are selling these products, you are now doing it in violation of the law.

“Bio Gen LLC and others brought this lawsuit against Gov. Sarah Huckabee Sanders, myself, Arkansas’s prosecuting attorneys, and many other state officials in an attempt to preserve an unchecked market in which dangerous drugs could be purchased by anyone, including children. At issue was Act 629’s prohibition of hemp products like Delta 8 and Delta 9, which have been known to have adverse health effects on users, particularly children. These substances are often packaged to mimic popular candy and other snacks, making it easy to fall into the hands of children. While the federal judge’s preliminary injunction was in place, we were unable to enforce the law.”

Delta 8 is similar to Delta 9 THC, the primary psychoactive compound in marijuana, but users typically describe it as producing a milder, more clear-headed high. Therefore, consumers see it as a less intense alternative to traditional cannabis and retailers — particularly in states where marijuana remains illegal — market it as a legal workaround.

The Arkansas legislature passed an act in 2023 to amend the state’s Controlled Substances Act to include Delta 8, Delta 9 and Delta 10 THC to Schedule VI, banning their growth, processing, sale, transfer or possession.

On the heels of the ban came a lawsuit from the hemp industry, who argued the ban conflicted with federal hemp laws. A U.S. District Court issued an injunction blocking enforcement of the schedule changes pending a final ruling.

“Bio Gen claimed that Act 629’s prohibition of such products violated provisions of the 2018 Farm Bill,” Griffin continued. “But the Eighth Circuit agreed with me and determined that ‘there is no support for this argument in the text or structure of the 2018 Farm Bill.’

“I am grateful to Senior Assistant Attorney General Jordan Broyles, Senior Assistant Solicitor General Asher Steinberg, and many others in my office who have worked tirelessly on this case to protect Arkansans from these harmful substances.

“Today’s win could not have been possible without the advocacy and work by Governor Sanders and her staff along with State Representative Jimmy Gazaway and State Senator Tyler Dees. They championed this legislation to protect Arkansans, and it passed with overwhelming supermajorities in both the House and Senate.”

Sanders provided the following statement:

“Today’s win is a huge victory for the safety of every Arkansan – and especially our kids. 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. I’m thankful to Senator Dees and Representative Gazaway for passing this law and Attorney General Griffin and his team for vigorously defending it in federal court.”

Dees added the following statement:

“This law has always been about protecting our children and the rest of society from a growing problem related to Delta 8 and other THC products. I co-sponsored this law to help solve that problem. We can no longer allow the profits of those who peddle these products to take priority over our kids’ protection.”

Gazaway added the following statement:

“These products are essentially recreational marijuana, and I am glad the court confirmed the state’s ability to ban them. Before our law, there was no regulation, no oversight, and no protections for consumers. Today’s ruling is a victory for Arkansans.”