Originally Published by the Arkansas Times Blog.
June 24, 2025

Federal court allows state to resume ban on sale of
hemp-derived THC products

By Matt Campbell – Arkansas Times

Arkansas can enforce a 2023 law banning the sale of hemp-derived products containing psychoactive levels of delta-8 or delta-9 THC while a lawsuit challenging the law makes its way through the federal courts, the Eighth Circuit Court of Appeals said on June 24. The ruling reverses a lower court’s injunction that prevented the law from taking effect.

The appeals court also reversed the lower court’s denial of a motion to dismiss Gov. Sarah Huckabee Sanders and Attorney General Tim Griffin as defendants in the lawsuit and returned the case to the Western District of Arkansas for further proceedings.

This case arose from the Arkansas Legislature’s passage of Act 629 of 2023. Congress passed a new version of the Farm Bill in 2018 legalizing hemp products nationally and allowing states to take over regulation of hemp production within their borders after certain conditions were met. Arkansas applied for and received approval for this in-state regulatory control in 2019.

“The appeals court reversed the lower court’s decision, sending the case back to the Western District of Arkansas for further proceedings.”

The federal bill created a regulatory loophole. It defined hemp as cannabis plants with delta-9 THC levels below 0.3% so as to not authorize the sale of marijuana, which remains illegal under federal law. But THC can be extracted and concentrated even from plants with low levels of the compound.

In 2023, Sanders signed Act 629, which criminalized several previously legal products and mandated that no product sold in Arkansas contain more than 0.3% delta-9 THC as measured in the finished product, rather than the dried hemp plant.

Four businesses engaged in the sale of formerly legal products containing higher concentrations of delta-9 — collectively referred to as Bio Gen in the Eighth Circuit’s opinion — filed suit in federal court, challenging the constitutionality of Act 629. As defendants, Bio Gen named Sanders, Griffin, 28 prosecuting attorneys, and state officials from the Department of Finance and Administration, Department of Agriculture, Tobacco Control Board and State Plant Board.

“Gov. Sarah Huckabee Sanders and Attorney General Tim Griffin were dismissed as defendants by the appeals court.”

Bio Gen requested a preliminary injunction, arguing that Act 629 was preempted by the 2018 Farm Bill and was void for vagueness. Sanders and Griffin filed a motion to dismiss themselves from the case based on sovereign immunity. U.S. District Court Judge Billy Roy Wilson granted the preliminary injunction, finding Bio Gen likely to succeed on the merits of both of those arguments, and he denied Griffin and Sanders’ motion to dismiss.

On appeal, the Eighth Circuit said both of these decisions were erroneous.

Because Act 629 specifically contained a provision that did not impact the transportation of cannabis plants through the state, the court said, it did not run afoul of the 2018 Farm Bill. Similarly, the court found Act 629 was not void for vagueness. The terms the lower court had found ambiguous — “continuous transportation,” “synthetic substances,” and “psychoactive substances” — were fully defined either in federal case law or within Act 629, the court said, providing a person with reasonable notice of what was prohibited by the law.

“Because the statute gives sufficient notice of the proscribed activity and does not invite arbitrary enforcement,” the court wrote, “it is not unconstitutionally vague.”

The court also found the lower court should have granted the motion to dismiss Sanders and Griffin as defendants based on sovereign immunity. Sanders, the court said, did not have “a sufficiently specific method of enforcement” of Act 629 as governor that would make her a proper party and overcome sovereign immunity. Likewise, the mere fact that Griffin had a “ministerial role” in certifying certain aspects of Act 629 was not enough to make him a proper party, according to the court.

The case now returns to the District Court for the Western District of Arkansas for further proceedings consistent with the Eighth Circuit’s rulings. While the case will proceed against the remaining defendants, at least for now, Griffin and Sanders will be dismissed and the state will be able to enforce Act 629.