Back on September 7, 2023, the Arkansas hemp industry scored a significant legal victory when the plaintiffs in Bio Gen LLC v. Sanders secured a federal injunction prohibiting enforcement of Act 629. (I wrote about it here.) That injunction allowed the industry to continue operating while bolstering legal arguments in other states that a state cannot impose a definition of “hemp” that deviates from federal law.
That momentum shifted today. In a major decision, the 8th Circuit Court of Appeals reversed the lower court’s ruling and dissolved the injunction.
Although the appellate court acknowledged that “Congress intended to forbid Arkansas from prohibiting the transportation or shipment through Arkansas of hemp legally produced in another state as allowed by the 2018 Farm Bill,” it held that Act 629’s “savings clause” mitigates this problem. In effect, the court found that the savings clause—a provision that preserves the enforceability of certain statutory elements even if others are invalid—rescues Act 629 from violating federal transportation protections. This is a significant reversal of one of the lower court’s key findings: that the anti-transportation provision in Act 629 was preempted by federal law.
The court also undermined another major pillar of the lower court’s ruling: the conclusion that states are bound to the federal definition of hemp. In a direct rebuke, the 8th Circuit stated:
“Just because states may legalize hemp under the 2018 Farm Bill does not mean they must…. Nor does Congress facilitating state legalization of hemp mean, as Bio Gen argues, that the states must use the federal definition of hemp.”
This language provides a concerning precedent for states seeking to narrow the scope of what qualifies as hemp within their borders—even if the same material is legal under federal law.
Finally, the court rejected the argument that Act 629 is unconstitutionally vague, concluding:
“We also conclude Act 629 is not unconstitutionally vague, and the district court abused its discretion when it issued a preliminary injunction based on the statute being void for vagueness.”
Implications for the Hemp Industry
This ruling is a serious setback for Bio Gen, the Arkansas hemp litigants, and the broader hemp industry in the state. More broadly, it sets a troubling precedent as hemp operators nationwide confront similarly restrictive laws in other jurisdictions.
The 8th Circuit’s decision opens the door for state-level redefinitions and restrictions that deviate from the federally accepted framework under the 2018 Farm Bill. If adopted by other courts or legislatures, this reasoning could threaten the consistency and predictability that hemp businesses depend on when operating across state lines.
The fight is far from over, but today’s ruling is a reminder: the legal foundations of the hemp industry remain vulnerable—and constant vigilance is required.
Here is the court’s ruling:
Read at Rod’s site
