Arizona AG Issues Misguided Opinion on Delta-8 THC

 

On March 11, 2024, the Arizona Attorney General’s Office (AG) issued an unfavorable opinion (Opinion) regarding the legal status of delta-8 THC and “other hemp-synthesized intoxicants.” A copy of the Opinion is included below, or you can click here to read it. The Opinion was requested by Arizona lawmakers, state Rep. Steve Montenegro and state Sen. T.J. Shope.

According to the Opinion, the question presented is:

Does Arizona law permit an entity that is not appropriately licensed by the Arizona Department of Health Services (“Health Services”) to sell products containing hemp-synthesized intoxicants like delta-8 tetrahydrocannabinol (“THC”), delta-10 THC, or any other product that has been synthetically converted from naturally occurring cannabidiol (“CBD”) or other cannabinoids into intoxicating substances?

In summary, A.G. Kris Mayes provides the following response:

No, Arizona law does not permit the sale of delta-8 and other hemp-synthesized intoxicants by entities that have not been licensed by Health Services.1  Irrespective of delta-8’s arguable federal legality under the 2018 Agriculture Improvement Act (‘Farm Bill’), Arizona continues to define and regulate ‘industrial hemp’ in a manner that precludes the sale of hemp-synthesized intoxicants in convenience stores, smoke shops, and other unlicensed locales.

As background, the AG provides that Arizona allows both medical and recreational cannabis, subject to strict regulation. The AG states that the Farm Bill arguably legalized hemp-synthesized intoxicants under federal law, though they footnote a disclaimer that they express no opinion regarding delta-8’s legality under federal law. The AG notes that the U.S. Drug Enforcement Administration (DEA) “appears to have given mixed messages regarding delta-8’s federal status, citing correspondence from DEA Chief Terrence Boos, but appears to largely ignore this guidance including confirmation that delta-8-THC can be derived naturally from hemp and when done so, it is not controlled. The AG also cites public health concerns related to delta-8 THC products, citing to the U.S. Food and Drug Administration’s (FDA) tracking of adverse events related to the products. They cite 104 total reports received between December 1, 2020 and February 28, 2022.

The analysis begins with the AG asserting that delta-8 THC is still a Schedule 1 controlled substance in Arizona. Both cannabis and marijuana are still listed as Schedule 1 controlled substances in the state’s Controlled Substances Act and Arizona broadly defines cannabis to include “[t]he resin extracted from any part of the a plant of the genus cannabis, and every compound, manufacture, salt, derivative, mixture or preparation of such plant, its seeds or its resin” and “[e]very compound, manufacture, salt, derivative, mixture or preparation of such resin or tetrahydrocannabinol.” The AG goes on to assert that hemp is part of the cannabis plant and hemp-synthesized intoxicants, including delta-8-THC, are a cannabis “derivative” and a “manufacture…derivative…or preparation” of tetrahydrocannabinol. Here the AG is saying that delta-8-THC products fall more plainly into a “derivative” of “Cannabis” rather than a “part” of “Hemp.”

The AG points out that Arizona’s industrial hemp program does not exempt hemp-synthesized intoxicants from the Department of Health Services’ (Department) regulation. Arizona defines “[i]ndustrial hemp” to “mean[] the plant cannabis sativa L. and any part of such a plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than three-tenths percent on a dry-weight basis.”  According to the AG, this is an important distinction to the federal definition of “hemp”, in that the state definition does not include hemp “derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers.”  In Arizona law the term “‘[h]emp products’ means all products made from industrial hemp, including cloth, cordage, fiber, fuel, grain, paint, paper, construction materials, plastics and by-products derived from sterile hemp seed or hemp seed oil.”  Thus, the AG contends, “hemp products” must be made from industrial hemp—which excludes derivatives and extracts—and the exemplary products are uniformly industrial and nonintoxicating in nature. This definition also explicitly “excludes any product made to be ingested except food made from sterile hemp seed or hemp seed oil.”

The AG recognizes that the Ninth Circuit, in AK Futures, noted that an industrial-purpose limitation “appear[ed] neither in hemp’s [federal] definition, nor in its exemption from the Controlled Substances Act.” However, the AG posits that the opposite is true in Arizona, where the use of the term “industrial hemp” itself indicates an industrial purpose, and the related definitions and guidance uniformly confirm that Arizona did not intend to legalize any intoxicating derivative of hemp. The AG further asserts that Arizona’s decision to place intoxicating cannabis products within the Department of Health’s purview and industrial hemp within the Department of Agriculture’s purview establishes yet another clear demarcation between these products.

In addition to these arguments, the AG asserts that arguments that delta-8 is broadly legal in Arizona are unavailing for a variety of reasons:

  • First, the industrial hemp law cannot be understood to have legalized edible non-edible forms of delta-8. Due to the state’s definition of “Hemp products” excluding any food product made to be ingested except food made from sterile hemp seed or hemp seed oil, the AG argues that gummies and other food products containing delta-8 therefore plainly cannot fall within the meaning of a hemp product, nor can “other food products” like vapes. The AG argues “it makes no sense to believe” that Arizona intended to maintain strict control of marijuana while impliedly legalizing an intoxicating cannabis derivative. The AG gives no further evidence of this claim, however.
  • Second, the AG asserts that state case law does not support an expansive reading of the industrial hemp law. The AG cites a case, State v. Jones, in which the Arizona Supreme Court addressed whether the medical marijuana program’s state definition of “marijuana” included hashish, an “extracted resin” from marijuana. The Arizona Supreme Court cited an expansive definition of “part” and found that “‘all parts’ refers to all constituent elements of the marijuana plant and the fact the resin must first be extracted from the plant reflects that it is part of the plant.” The AG acknowledges contrary views espoused by delta-8 advocates, positing that this holding should be extended to support a broad definition of “industrial hemp.” But the AG claims that because the marijuana law expressly anticipated that patients would consume products by edible form, it is separate from the analysis for hemp-derived intoxicants. The AG further suggests that because the marijuana program there legalized an intoxicating substance for certain purposes it must be understood to have legalized a materially similar intoxicating extract of marijuana.
  • Third, the industrial hemp law’s incorporation of federal law does not legalize delta-8. The Farm Bill, by its express limits, does not preempt or limit any state law that regulated hemp production more stringently than federal law. Arizona’s industrial hemp law even provides that “[i]f authorized under federal law, the commercial product, processing, manufacturing, distribution, and commerce of industrial hemp in this state is allowed outside of the agricultural pilot program.” The AG claims that Arizona’s incorporation of federal law in this provision is necessarily constrained by the term “industrial hemp” as defined and limited under Arizona law.

For the reasons detailed above, this AG Opinion concludes that delta-8 and other hemp-synthesized intoxicants cannot legally be sold by entities that are not licensed cannabis sellers.  The AG cautions though, that the Opinion should not be construed as a general endorsement of the sale of hemp-synthesized intoxicants by licensed cannabis sellers.

While not having the force of law, the Opinion essentially gave the state a document and legal position to point to if and when it begins prosecutions regarding delta-8 products. For this reason, the purchase, possession, and sale of delta-8 products in Arizona currently appears to bear significant risk.

Kight Law strongly disagrees with the AG’s Opinion and was not invited to participate in its formulation.

The lawyers at Kight Law Office are not licensed in Arizona. The views expressed in this article are editorial in nature and should not be construed as legal advice regarding any aspect of Arizona law.

Here is the AG’s Opinion on Delta-8: https://cannabusiness.law/arizona-ag-issues-misguided-opinion-on-delta-8-thc/

 

ATTORNEY AMBER LENGACHER IS EXPERIENCED IN REPRESENTING HEMP/CANNABIS BUSINESSES THROUGHOUT THE US.

This article was written by attorney Amber Lengacher. Kight Law represents hemp businesses in the US and throughout the world.

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