I’m not much of a legal mind, but it seems like literally every attempt at Farm Bill “preemption” arguments against state laws on THCa/total THC/Delta 8 etc ends up as a massive failure. Can you recall a judge ever affirming the preemption argument?
Seems interesting that it ends up DOA in court while in practice it is being used thousands up on thousands of times daily to send “Federally Legal Hemp” to all 50 states.
See Barger v. State of Ind., 991 F.2d 394, 396 (7th Cir. 1993) (“State courts are the final arbiters of state law”); Republic Servs. of Ind.
Ltd. P’ship v. Coe Heating & Air Conditioning, Inc., 700 F. Supp. 3d 676, 686 (N.D.
Ind. 2023) (“A federal court also has a[n] . . . obligation not to opine on matters of
state law where it is unnecessary.”)
That the Plaintiffs have hung their hats on
challenging the Official Opinion in federal court is their own cross to bear.
(from the rejection in the post I’m replying to… Seems pretty cut and dry for those who actually interpret the law)
The only time I’ve seen the preemption argument work is when the definition of hemp was modified from the federal one, can’t remember which case off the top of my head. Arkansas maybe?
Yeah, it’s the BioGen v. Gov Sanders case out of Arkansas. The state appealed and it’s currently pending in the 8th circuit. Shitty statutory language in that one so the lower court’s decision could very well get affirmed.
DEA filed a motion to dismiss today in the Sabhie Khan vs Allen TX case
The State of Texas created a plan for the regulation of hemp production that complied with the Agriculture Improvement Act of 2018 (“2018 Farm Bill”)4 requiring testing that accounts for conversion of THCA into THC. In the 2018 Farm Bill, Congress mandated that any state plan for the regulation of hemp products include “a procedure for testing, using postdecarboxylation or other similarly reliable methods, delta-9 tetrahydrocannabinol concentration levels of hemp produced in the State.” 7 U.S.C. § 1639p(a)(2)(A)(ii) (emphasis added); see also 7 U.S.C. § 1639q(a)(2)(B) (requiring same for federal testing).
To give effect to that congressional directive, the U.S. Department of Agriculture (USDA) has required by regulation that any analytical testing of hemp samples by a state “must consider the potential conversion of THCA in hemp into THC and the test result must report the total available THC derived from the sum of the THC and THCA content.” 7 C.F.R. § 990.3(a)(3); see also 7 C.F.R. § 990.25(g) (requiring same for federal testing). Notably, USDA
has further clarified that even if a non-decarboxylating testing method is used, such as liquid chromatography (the method Plaintiffs advocate for), a conversion formula must be applied in order to approximate how much of the THCA would have been converted into THC if a decarboxylating method had been used. 7 C.F.R. § 990.1 (defining “total THC”).
As Plaintiffs’ point out, the testing used in this case, gas chromatography, does account for the measurement of the total THC concentration level including the potential of converting THCA into THC. See, Dkt 2, p.26 ¶46. That is exactly as Congress intended THC testing to be conducted, and that is the methodology that has been necessarily prescribed by regulations of the USDA. Far from violating any cognizable rights of the Plaintiffs, the testing employed in this case precisely followed the methodology that is mandated by federal law and cannot give rise to any claim for relief.
Oh they knew the minute the story was published last week - though I honestly doubt they’ll make any sort of move. They seem to be hoping that all of their lobbying related problems will solve themselves
I’m more wondered about if you can sue for damages because you are a licensed cannabis biz
They mentioned committing mail and wire fraud. Which is simply saying it doesn’t have THC and then after decarb it does and you mailed and or wired money.
you might be able to make a Lanham act claim for unfair competition/false advertising, I think that’s what infinite cal was doing before they withdrew their suit
I doubt you would have standing in federal court thinking about it now, idk how they would accept a claim for damages to something federally illegal
I need to do more research. To confirm one way or another. This is not legal advice!
If your not blocked from being able to sue due to federal illegalization, then I imagine you would be able to sue under the rico statute.
Now what woild constitute a violation i need to look into.
Knowingly pushing hit hemp, that didnt follow state law to the t as far as testing
probably guilty.
The scenario that has me legally intrigued is if there is a legal grey area in your state that allows you to harvest at a point where your product runs hot when tested would this violate the law.
The SCOTUS decision is notable, not because it involved hemp, but because the Court held for the first time that a plaintiff may recover damages under the federal civil RICO statute for business or property losses that stem from a personal injury.
The cannabis media’s coverage of this lawsuit completely misses that the underlying facts occurred in 2012 or 2013 which was well before the passage of the 2018 Farm Bill. Back in the “good ole days” any amount of THC was still a controlled substance so the fact that plaintiff ingested this CBD product that turned out to have THC in it, made it a federally illegal product. Hence, RICO.
Plaintiffs attorneys have already filed state RICO class action lawsuits against the hemp industry. One complaint recently survived a motion to dismiss. the case is Nguyen v. Savage Enterprises. Plaintiff on behalf of herself and a class of others similarly situation, alleged hemp defendants engaged in a pattern of racketeering activity through the manufacturing, distribution, certification, and sale of Delta-8 and Delta-9 THC vape pens containing illegal levels of Delta-9 THC. Plaintiffs allege that defendants used false COAs and deceptive marketing to mislead consumers about the legality and safety of these vape pens.
In denying defendant Savage Enterprise’s motion to dismiss, the court found that plaintiffs sufficiently alleged that defendants engaged in (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.
There are a handful of other class action lawsuits involving state RICO causes of action but I believe this was the first one to actually make it past the motion to dismiss stage.
Danbury Vape Shop Raids-- Attorney General Tong, Mayor Alves, Danbury Police, State Department of Consumer Protection, Department of Emergency Services and Public Protection, Department of Revenue Services, Department of Labor, Department of Mental Health and Addiction Services Announce Confiscation of 55 LBS of Illegal Cannabis
In a similiar vein, i wonder if theres an equal protection violation with licensed cannabis sellers having to file 280e, but intoxicating hemp being able to write off any business expense
