Originally Published by the Arkansas Times Blog.
August 28, 2025 

Delta-8 blues: The end of hemp-derived THC products in Arkansas

By Matt Campbell – Arkansas Times

Hemp-derived THC products sold at a store in Arkansas before a state ban went into effect

You know how, for the last few years, the shelves of vape shops, truck stops and gas stations around The Natural State were full of products with names like Trips Ahoy, Area 52 and Zombi Death Drops? These products — which were not “marijuana” in the legal sense, but still contained psychoactive cannabinoids — existed in a weird legal gray area. That is, they were accidentally legalized by a 2018 federal law, banned by Arkansas in 2023, but were still available in stores thanks to a court injunction against that ban.

Until recently. Now those shelves are empty, thanks to a ruling from the federal 8th Circuit Court of Appeals in late June. The 8th Circuit said Arkansas can enforce its ban on the sale of hemp-derived products containing psychoactive levels of delta-9 THC, as well as other common synthetic cannabinoids, while a lawsuit challenging the law makes its way through the federal courts.

The appeals court also reversed a 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 Eastern District of Arkansas for further proceedings. 

A few weeks later, in mid-July, the court issued a mandate finalizing its ruling and Griffin announced that the ban was officially back in place. The state’s Division of Alcoholic Beverage Control subsequently updated their website to include a popup about the court’s ruling, which says “most, if not all, hemp products you may sell are illegal” and “continued sale, production, or possession of products containing these substances may result in criminal penalties, as well as potential regulatory penalties or sanctions.” Multiple requests to the division for records related to any citations issued or prosecutions brought under the law went unanswered.

The ruling at issue came in a case that 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 federal bill created a regulatory loophole. By defining “hemp” only 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 — the bill accidentally legalized delta-8 and other cannabinoids found in cannabis or derived from hemp. It also failed to recognize that even in plants with low levels of delta-9, the compound can be extracted and then concentrated.

VAPOR MAVEN: A billboard advertising Delta-8 gummies could previously be seen on Highway 67 near Beebe.
Credit: Griffin Coop

In 2023, Sanders signed Act 629, which criminalized several previously legal products, including delta-8, delta-6a, delta-10 and delta-10a. The act also 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, and imposed marketing and labeling restrictions on hemp products.

Four businesses that sold formerly legal products containing higher concentrations of delta-9 — collectively referred to as “Bio Gen” in the 8th 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.

Bio Gen requested a preliminary injunction, arguing that Act 629 was preempted by the 2018 Farm Bill’s legalization of hemp products. Bio Gen also argued the act was void for its vagueness, taking issue with the ambiguity of terms like “synthetic substances.” Sanders and Griffin filed a motion to dismiss themselves from the case based on sovereign immunity. U.S. District Judge Billy Roy Wilson granted the preliminary injunction to Bio Gen and 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, was immune from the suit because she did not have “a sufficiently specific method of enforcement” of Act 629 as governor that would make her a proper party in the suit. Likewise, the 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.

Enacting the ban is not as easy as flipping a switch, however, as several questions remain about the scope of the state’s prohibition. 

At a state House Rules Committee meeting shortly after the Eight Circuit’s decision, an attorney from Griffin’s office said the state was still expecting a legal challenge to the ban on THCa, a compound that was not clearly addressed in Act 629. Additionally, the state Alcohol Beverage Control Board, which oversees medical marijuana in Arkansas, has suggested there might be an amnesty period for businesses to achieve compliance with the ban, but has provided no details on what that might look like. On an individual level, ABC has said that selling prohibited THC products could lead to arrest and prosecution, but they have not said whether simple possession will also be criminalized.

Griffin’s announcement in July made no mention of an amnesty period for businesses, but said they ran the risk of criminal liability for continuing to sell hemp-derived products, as do consumers who purchase them.

For now, the case returns to the district court for further proceedings consistent with the Eighth Circuit’s rulings. The state is now able to enforce Act 629, the litigation will proceed against the remaining defendants (at least for now) and your days of getting a bag of Stoney Patch Kids from the same place you get gas and questionable burritos appear to be over.