After a federal judge temporarily struck down an Arkansas ban on delta-8 THC, it remains legal in the state.
It will go to trial in August 2024, but the result of the legal action so far means that Arkansas can’t institute its proposed law and must fall back to Act 565. Arkansas is in a pretty unique position, because it’s one of the few states where – at least until the trial – delta-8 THC is unambiguously legal.
Here’s what you need to know.
Is Delta-8 THC Legal to Sell in Arkansas?
Delta-8 THC is legal to sell in Arkansas, after a court struck down the ban created by Act 629.
Act 565, the Arkansas Industrial Hemp Production Act, was passed in 2021 and ultimately still controls hemp law in Arkansas. The bill basically altered the existing program so that you no longer need a research plan to get a hemp license (section 2-15-507.(c)(1)/page 14, line 36), opening up the existing program in the state using the same definition as the 2018 Farm Bill. It also noted (section 2-15-506/page 14, line 27) that if the bill conflicts with federal law, the federal law takes precedence.
Additionally, Act 504 made exceptions to the state’s controlled substances act for “hemp-derived cannabidiol,” which is defined just like industrial hemp. The state tried to ban delta-8 THC through Act 629, but this bill now cannot be enforced.
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The Arkansas Hemp Industry vs. Act 629
In September 2023, a federal judge ruled that the state’s delta-8 THC ban, Act 629, cannot legally be enforced.
Act 629 made changes to the state’s controlled substances laws, explicitly including anything “that was produced as a result of a synthetic chemical process that converted the industrial hemp […] into Delta-8, Delta-9, Delta-6a, 10a, or Delta-10 tetrahydrocannabinol.”
It also made changes to the definition of hemp, including altering the 0.3% limit to apply to the “hemp-derived [CBD],” rather than the whole plant or product, and excluded anything that’s listed as a controlled substance. The bill was basically a two-pronged attack on delta-8 THC and other cannabinoids derived from hemp.
The state was sued by Bio Gen and other companies, who argued that the state had tried to redefine hemp in a way not allowed by the 2018 Farm Bill and that the act prevents interstate commerce in hemp.
After some back and forth, the Arkansas federal court granted a preliminary injunction against the state, preventing it from enforcing the bill. The court essentially agreed with the industry’s arguments, holding that the hemp plaintiffs were likely to succeed on the merits, i.e. that the state both impermissibly redefined hemp and didn’t adequately protect interstate commerce.
The case will go to court on August 27th, 2024. Read more about the ruling here.
Can You Buy Delta-8 THC in Arkansas?
Delta-8 THC is available to buy in Arkansas, from both online and brick-and-mortar stores.
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Delta-8 Alternatives You Can Legally Buy
Although Act 629 would have banned delta-8 THC, delta-10, delta-7 and basically anything intoxicating that was produced by chemically modifying natural hemp components, this bill cannot be enforced. This means that these alternatives are available, so long as there is less than 0.3% delta-9 THC by dry weight.
Age Restrictions
There are currently no age restrictions on delta-8 THC products in Arkansas, although stores generally only sell to adults aged 21 or over. Act 629 would have made it illegal for minors to buy or possess delta-8 THC (section 20-56-411(a) and (b)), but this bill cannot be enforced.
Traveling to Arkansas With Delta-8 THC
You can travel to Arkansas with delta-8 THC. Since the state was prevented from enforcing its ban and it is usually considered to be legal at the federal level, there are no restrictions on traveling interstate.
One of the key elements of the court decision against Act 629 was the fact it prevented “interstate commerce” – i.e. traveling through Arkansas with hemp or hemp products – by banning federally legal hemp.
While this isn’t intended for consumers, the ruling is still relevant: if delta-8 THC is banned, you can’t really transport it across state lines for commercial or any other purposes. So the court overturned the ban, which basically means that anyone can possess hemp delta-8 THC legally, or bring it into the state.
Additionally, the Transportation Security Administration notes that products legal under the Farm Bill can be brought on interstate flights.
Closing Thoughts: The Future for Delta-8 in Arkansas
The future of delta-8 THC is very uncertain due to the ongoing legal action, with the court case scheduled for August 27th, 2024. Arkansas also filed an appeal in the 8th Circuit Court of Appeals, with the brief being due November 29, 2023 and Bio Gen’s brief due 30 days later. Despite the ongoing issues, state legislators may attempt to pass bills in the next legislative session to fill the gap left by Act 629.
For example, the state may attempt to pass a shorter, more focused bill with the express goal of banning intoxicating hemp sales to minors. However, it’s likely that the case surrounding Act 629 will play out before there are any major changes to Arkansas hemp law. It’s also important to note that the 2023 Farm Bill may make substantial changes to hemp programs across the country.
Overall, it’s likely that Arkansas hemp law will change at some point in the next year, but companies and consumers can rest easy at least until the new legislative session convenes.