The 2018 Farm Bill permits the growing of “industrial hemp” if a state chooses to allow the crop. The Farm Bill explicitly states that it does not preempt any state or triable law that regulates the production of hemp, but does not allow a state to prevent the transportation of hemp products through the state. In 2023, the Arkansas passed Act 629, a law that bans “the growth . . . transfer, or possession of industrial hemp that contains certain Delta THC substances[,]” and criminalized hemp products that were derived “from a synthetic chemical process.” However, the bill did try to address the interstate transportation issue by allowing the “continuous transportation” of the hemp derived Delta substances through Arkansas.
The plaintiff sued officials in Arkansas claiming the state law was preempted by the 2018 Farm Bill, violates the Commerce Clause, and is a regulatory taking under the 5th amendment. They asked the court for a preliminary injunction against the enforcement of the Arkansas law.
The court issued the preliminary injunction on multiple grounds. The court found there is a conflict preemption based on the differing definitions of hemp between the two laws. Specifically, the court found that the federal definition allows for downstream hemp-derived products as long as they do not contain more than 0.3 percent delta-9 THC while the Act 629 does not.
The court also found there was express preemption on the transportation issue. Act 629 does not further define “continuous transportation” and plaintiff successfully argued that the law would not allow a truck driver to stop for gas or rest in Arkansas. The court found that this conflicted with federal allowance of hemp transportation through a state.
Bio Gen, LLC et al. v Sanders, et al.4:23-CV-00718-BRW (E.D. Ark. Sept. 07, 2023).
