A group of hemp retailers and an agricultural organization are suing the state of Wyoming, claiming that its recent ban on the marijuana-like substance delta-8 is unconstitutional. The Hemp Community of Wyoming wants an injunction or restraining order to stop the law from going into effect.
“We will fight to keep our small businesses open, keep food on the tables of our staff, and keep products coming to the hardworking people [of] Wyoming,” Gillette’s Mountain High Wellness store owners Sarah and Richard McDaniel, who are among the plaintiffs, said in a statement. “The Hemp Community of Wyoming is not backing down until the people of Wyoming have the right to decide what we use for alternative options to big pharma and our small businesses have the right to continue to operate.”
A perceived loophole in federal and state law allowed for the rise of delta-8, a substance similar to marijuana. While marijuana remains illegal in Wyoming, shops across the state have started selling delta-8 products instead. Many of those stores are now plaintiffs in the lawsuit, which was filed Friday in U.S. District Court.
Mandy Flint helped organize the group of plaintiffs, which also include shops like Up In Smoke II (Laramie), Capitol Botanicals (Cody), Dr. Chronic’s Concentrates (Casper), Flower Castle Elevated Wellness (Cheyenne) and CinD’s CBD and Vape (Torrington). It also includes the agricultural operation Greybull River Farms.
The plaintiffs argue this ban illegally narrows the federal definition of hemp, interferes with interstate transportation, and is overly broad and vague.
“For instance, [Senate File 32, ‘Hemp-limitations on psychoactive substances’] bans hemp containing any “synthetic substance,” a term which is overly broad that incorporates “non ‘psychoactive substances’” like CBD that contains no THC,” the filing states.
The plaintiffs are suing the state, governor, attorney general, Wyoming Department of Agriculture director, 21 county and prosecuting attorneys, and the district attorneys in Laramie and Natrona counties.
Members of the Hemp Community of Wyoming chipped in for the $35,000 retainer to work with Domonkos & Thorpe Law Office in Cheyenne, with assistance from Philip Snow of MC Nutraceuticals and Justin Swanson of Bose Law.
A ban to close shops
The Wyoming Legislature enacted the ban at its budget session earlier this year. Stores relying on delta-8 sales considered closing or selling all their delta-8, Platte Hemp co-owner Sam Watt told WyoFile in late May, but then some started contacting him because he’d told news outlets that he wanted to fight the ban. Platte Hemp and its five stores around the state are also part of the suit.
“There’s actually quite a [few] shops that were getting rid of all their product” before they heard about the lawsuit, Watt said. “[Now], they’re not going to be carrying a lot of products, just in case it does go south.”
K.C. Yohe, co-owner of The Green Room in Casper, is also part of the group suing the state. Started by Christian Howe and Kobie Waddy in a closet in the back of a comic book store, the shop grew to serve customers with hemp substances and accessories, avoiding nicotine sales because the owners wanted to focus on plants that benefit people’s health, she said. If the ban went into place, though, Yohe said they’d have to pivot — alongside all the other shops relying on delta-8 in Wyoming.
“We would not be able to stay open without bringing in nicotine or some sort of other thing,” she said. “If this injunction doesn’t go through, it will completely decimate our business.”
Manufacturer and retailer PolyXtracts is also part of the group suing. The business processes and makes its own product using hemp flower, selling to consumers and specific stores. And when CEO Kevin Kraft reads the ban language, he said he sees some major flaws that he believes will ban cannabidiol, or CBD, too.
CBD, which is also derived from hemp, has also enjoyed a booming national market, used for everything from balms and candy to dog treats aimed at treating certain ailments like anxiety or soreness. Some marketing for CBD has been overblown, but many still see it as a mild treatment for a range of health issues.
The concern over a delta-8 ban also outlawing CBD sales did come up during legislative proceedings, but was dismissed. Still, lawmakers like Rep. Barry Crago, R-Buffalo, stated clearly that they didn’t want to ban CBD.
Kraft feels lawmakers were led astray, and said they didn’t reach out to industry professionals that would’ve voiced concerns about the wording.
“They didn’t do their homework; they didn’t do their research,” he said.
Background
When Congress passed the 2018 Farm Bill, some savvy business owners noticed how the law defined hemp while legalizing the plant. The legislation specified that hemp had delta-9 THC levels lower than 0.3% on a “dry weight basis.” There was no mention of similar THC cousins, like delta-8.
Many states, including Wyoming, adopted the same language as the federal law.
Businesses boomed nationwide, with retailers selling delta-8 THC compounds they were able to synthesize from legal hemp and CBD. Delta-8 gives a similar but reportedly milder high as delta-9 THC, the main intoxicating compound in marijuana.
Most delta-8 products could already be considered illegal in Wyoming because synthetically made hemp products are outlawed, Wyoming State Crime Laboratory staff told lawmakers. Most products use larger amounts of the substance than occurs naturally, they said, requiring it to be synthesized.
However, because the lab can’t distinguish the naturally occurring delta-8 from synthesized delta-8, it’s hard to prosecute.
“There isn’t a scientific test we can do right now to prove [delta-8’s origins],” Sarah Barrett, the lab’s drug chemistry and toxicology supervisor, told the Joint Judiciary Committee in September.
There is also a notable lack of oversight — something many in the industry are calling for as an alternative to bans. While some shops use third-party certificates of analysis to ensure their product contains what the label says, it’s not required.
“We’re screaming for that,” Kraft said of the regulations. “For us as a lab, for example, we’re one of the few companies that’s required to have a license. Yet there’s other people out there that are just buying distillate and creating products and not doing proper testing and really have no idea what they’re doing.”
The Food and Drug Administration even warns consumers that delta-8 products haven’t been federally vetted and can be created using harmful chemicals.
But rather than regulate delta-8, Wyoming lawmakers banned it outright with SF 32, which took effect Monday.
People affected by severe and chronic illnesses spoke out against the bill, saying delta-8 reduces their pain while allowing them to avoid potent drugs like opioids. Meanwhile, others testified in favor of the ban, pointing to hospitalizations of kids who said they’d ingested delta-8, though they weren’t old enough to legally buy the product from stores.
“The sheriffs and chiefs of police have been involved with this [legislation] throughout the process,” Roy Eckert, then with the Wyoming Association of Sheriffs and Chiefs of Police, told lawmakers in February. “We still support this bill. Ultimately, it’s about what’s best for our communities.”
Federal legality
There are some actions on the horizon that could make delta-8 and similar substances illegal at the federal level via the next Farm Bill. And that’s important because one argument against a Wyoming ban was that it would harm local businesses as residents turn to federally legal substances online.
That’s after a federal judge in Arkansas found that states can’t prohibit the federally legal substance from passing through their borders.
If delta-8 becomes federally prohibited, too, Wyoming may be stripped of herbal intoxicants once again, left with alcohol as the recreationally legal drug of choice.
According to a 2020 University of Wyoming survey, residents overwhelmingly supported legalizing medical marijuana (85%), while a majority (54%) also supported legalizing recreational marijuana.
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