690 F.Supp.3d 927
E.D. Ark.2023Background
- The 2018 Farm Bill federally legalized hemp (Cannabis sativa L. and derivatives) with a delta-9 THC limit of 0.3% and forbade states from prohibiting interstate transportation of hemp and hemp products.
- Arkansas enacted Act 629 (2023), which (a) redefined “industrial hemp” by tying the 0.3% delta-9 limit to the weight of cannabidiol, (b) criminalized certain hemp-derived cannabinoids (including Delta-8, Delta-10, and synthetic derivatives), and (c) included an ill-defined "continuous transportation" carve-out for interstate shipments.
- Plaintiffs (hemp businesses) sued state officials seeking a preliminary injunction, arguing Act 629 is preempted by the 2018 Farm Bill, violates the Commerce Clause and the Due Process vagueness doctrine, and effects a taking.
- Defendants moved to dismiss some officials based on sovereign immunity; Plaintiffs amended to name specific state officials. The court held the Governor and Attorney General have enforcement connections and denied dismissal.
- After briefing and a hearing, the court granted a preliminary injunction enjoining enforcement of Act 629 and set a bench trial for August 27, 2024.
Issues
| Issue | Plaintiffs' Argument | Defendants' Argument | Held |
|---|---|---|---|
| Sovereign immunity / proper defendants | State officials who enforce Act 629 may be sued; injunctive relief is appropriate | Governor and AG lack specific enforcement duty and are immune | Officials (including Governor and AG) have enforcement connection; motion to dismiss denied |
| Conflict preemption — hemp definition & synthetic derivatives | Act 629 rewrites federal hemp definition (ties delta-9 to cannabidiol) and criminalizes hemp derivatives, effectively re-listing federally lawful hemp | Act 629 is consistent with federal law and states may impose stricter production rules | Court found Plaintiffs likely to succeed on conflict preemption: Act 629 conflicts with 2018 Farm Bill definition and scope |
| Express preemption — interstate transportation | 2018 Farm Bill bars states from prohibiting transportation of hemp and hemp products produced under federal/state plans | Act 629 contains a transportation carve-out and states may regulate production within borders | Court found Act 629’s "continuous transportation" language vague and inadequate; Plaintiffs likely to succeed on express preemption |
| Void for vagueness | Key terms ("continuous transportation", "synthetic substance", "psychoactive substance", and phrases about "danger of misuse") are undefined and give no fair notice | Statute gives sufficient standards to enforce public-safety objectives | Court found those provisions unconstitutionally vague and Plaintiffs likely to succeed |
Key Cases Cited
- Ex parte Young, 209 U.S. 123 (1908) (state-official-suit exception to Eleventh Amendment for prospective relief to enjoin enforcement of unconstitutional state law)
- Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109 (8th Cir. 1981) (four-factor preliminary-injunction test)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires injury-in-fact traceable to defendant and redressable)
- Connally v. General Construction Co., 269 U.S. 385 (1926) (void-for-vagueness standard: laws must give fair notice and not encourage arbitrary enforcement)
- Wisconsin Public Intervenor v. Mortier, 501 U.S. 597 (1991) (Supremacy Clause preemption principle)
- Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) (framework for field and conflict preemption analysis)