Will Arkansas' Bold New Hemp Law Stand? A Closer Look at the Controversial Trigger Provision

By Andrea Golan, Ashley Davies

May 4, 2023

Arkansas' hemp legislation SB-358, now known as Act 629 (the “Act”), has a stated purpose “to prohibit the production and sale of intoxicating substances derived from hemp.” It does so by prohibiting delta-8 as well as other THC isomers and synthetic equivalents of THC.

Prohibited Isomers of THC and Synthetic Forms of THC

Effective immediately, the following isomers of THC and synthetic forms of THC are prohibited for sale to persons under 21:

Delta-8 THC, delta-9, delta-10, delta 6a, 10a
The acetate esters of delta-8, delta-9, and delta 6a, 10a, delta-10 (i.e., delta-8 THCo, etc.)
A product produced as a result of a chemical process that converted the hemp into delta-8, delta-9, delta-6a, 10a, or delta-THC and their acetate esters
Any other psychoactive substance derived from this list

Beginning on August 1, 2023, that prohibition extends to persons 21 and older.

Amends the Definition of Industrial Hemp

The new law also amends the definition of “industrial hemp” under the Arkansas Industrial Hemp Production Act by limiting the delta-9 THC concentration in hemp to 0.3% of the CBD concentration, as opposed to a maximum of 0.3% delta-9 THC in the hemp itself as defined in the 2018 Farm Bill (and almost every state in the country). This new definition is applicable to “hemp products” as defined in the Arkansas Industrial Hemp Act.

Controversial Trigger Provision

A second key feature of the Act is its “trigger provision,” meaning that certain sections of the Act will only become effective upon the occurrence of a specific condition or event. In this case, the Act’s detailed and rather restrictive regulatory framework for the manufacture and sale of hemp-derived products will only become operative if:

this new limit on the delta-9 THC concentration is challenged in court;
the challenging party wins and the state loses; and
the court issues an injunction (a legal order) that requires the state to stop enforcing those sections of the law “relating to delta-8 and delta-10 THC.”

There is no doubt that this law will be challenged, including the question of whether this trigger provision is constitutional or legal. Until then, this new limitation on delta-9 THC concentration is effective immediately.

The Threatened Regulatory Framework for Hemp

Should the state be enjoined from enforcing its new definition of “industrial hemp,” Sections 6 through 14 of the Act, which set forth a number of requirements for the sale of hemp-derived products, will kick in, but not before August 1. See Section 17, entitled “Contingent effective date,” which provides:

Sections 6-14 of this act shall become effective only upon the certification of the Arkansas Attorney General that the State of Arkansas is currently enjoined from enforcing Sections 2-5 of this act relating to delta-8 tetrahydrocannabinol and delta-10 tetrahyrdocannabinol [sic], but no earlier than August 1, 2023.

The highlights of the contingent regulations are as follows:

“Hemp-derived products” would be permissible for manufacture, distribution, and sale subject to certain permitting requirements. A “hemp-derived product” means a product “intended for any form of consumption,” including vaporizer products, e-liquids, products intended for inhalation, and all derivatives, extracts, cannabinoids isomers and any product made from such derivatives that contains more than 0.3% THC (note: this looks like a mistake in drafting and should read as “not more than 0.3% THC). Excluded from the definition of “hemp-derived product,” and presumably unlawful or otherwise not regulated under this new law are products intended for animal consumption, cosmetics, raw flower, buds, leaves, dietary supplements, products greater than 0.3% THC, and hemp fiber materials.
All manufacturers and sellers of hemp-derived products must obtain a permit from the Arkansas Tobacco Control (“ATC”) for manufacturing, wholesale, and retail activities. Applicants must undergo a criminal background check and provide written notice to the ATC if there is any change in the management structure and apply for a new permit. The permit fee is $5,000 for each permitted activity (manufacturer, wholesaler, or retailer). The Act also imposes extensive recordkeeping requirements and requires that all books and records related to the sale of hemp-derived products are subject to inspection by the ATC.
Hemp-derived products cannot be combined with any of the following: Any liquid, hydrocolloid, animal-based substance, thickener, sweetener, flavoring, synthetic product, propylene glycol, vegetable glycerin, or other non-hemp-derived substance.
Packaging, labeling, advertising, and marketing may not use characters or symbols that might appeal primarily to children, including “mythical creatures” and “unicorns.”
Requires all products to be tested by a third-party laboratory for cannabinoid profile, heavy metals, solvents, pesticides, and microbials.
Hemp-derived products may not be sold to persons under 21 years of age.

Conclusion

To sum it all up, products that contain THC isomers, synthetic THCs, or acetate esters of THC or any other psychoactive substance derived from THC, can be sold to persons 21 and older until August 1^st, 2023. Sales to those under 21 are prohibited effective immediately.

As for all other hemp-derived products, including products containing CBD or other cannabinoids, they must conform to this new definition of “industrial hemp” unless it is successfully challenged. Stay tuned to see how this new definition may or may not impact Arkansas’ USDA-approved plan.

Please reach out to Vicente attorney Andrea Golan with any questions.

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