Nearly two dozen attorneys general from across the country wrote a letter to congressional leaders this week, urging them to enact legislation to federally regulate intoxicating hemp products. In the letter, the top law enforcement official from 21 states wrote that the legalization of hemp with the 2018 Farm Bill has resulted in “the proliferation of intoxicating hemp products across the nation and challenges to the ability for states and localities to respond to the resulting health and safety crisis.”

The letter, dated March 20, was addressed to the committee chair and ranking minority members of the Senate Committee on Agriculture, Nutrition, & Forestry and the House Committee on Agriculture. The correspondence was led by Indiana Attorney General Todd Rokita and Arkansas Attorney General Tim Griffin, both Republicans, and co-signed by the attorneys general of 19 additional states, including Democrats and Republicans.

In their letter, the state officials call on the leaders in Congress “to address the glaring vagueness created in the 2018 Farm Bill.” The legislation has led to the proliferation of products containing psychoactive novel and minor cannabinoids that can be derived from hemp, including delta 8 THC, THCA, HHC and others.

“The reality is that this law has unleashed on our states a flood of products that are nothing less than a more potent form of cannabis, often in candy form that is made attractive to youth and children — with staggering levels of potency, no regulation, no oversight, and a limited capability for our offices to rein them in,” reads the letter.

To address the issue, regulators and lawmakers in many states across the country are seeking ways to stem the tide of unregulated intoxicating hemp products, arguing that they pose a health risk, particularly to young people. Advocates for tighter controls on intoxicating hemp products in states with legal weed note they pose a competitive threat to licensed marijuana businesses, which face the high costs and taxes often associated with the regulated pot industry.

Regulating intoxicating hemp products has been resisted by some businesses and industry advocates. Some companies marketing intoxicating hemp products have filed lawsuits to block new regulations, arguing that the 2018 Farm Bill specifically legalizes hemp-derived cannabinoids other than delta-9 THC.

These legal actions have produced mixed results. In Arkansas, a federal judge issued a preliminary injunction in September that bars the implementation of a law to ban intoxicating hemp products. 

“These inconsistent court rulings are part of the reason I have urged Congress to step in and create consistency across the nation to protect our children from these dangerous drugs,” Griffin said in an email to Politico.

California Attorney General Bonta, one of the attorneys general who signed the letter to congressional leaders, said that intoxicating hemp products constitute a health risk for young people.

“Our children deserve better,” Bonta said in a statement. “The 2018 Farm Bill, however well-intentioned, created a loophole that has led to the proliferation of products, often containing synthesized cannabinoids, that are more intoxicating than legal and regulated cannabis products. These products often take the form of candy and are designed to appeal to young people and children. California prohibits intoxicating cannabinoids in hemp products, whether naturally derived or synthetic. The California Department of Justice will continue to protect the legitimate businesses who are operating responsibly in this space.”

The letter calls on the leaders of the congressional agricultural committees to take action to regulate intoxicating hemp products by redefining hemp in the next farm bill, which is currently being debated in Congress. The legislation, which guides policy on a wide range of issues related to agriculture, is updated every five years, although progress on last year’s anticipated renewal of the legislation was delayed to this year.

“The reason Congress needs to act is that its definition of industrial hemp is the original source of the problem and the confusion that has sprung up around what is allowed and what’s not allowed under state and federal law,” Indiana Solicitor General James Barta said in an interview with Politico.

Arkansas Attorney General Tim Griffin recently rejected a medical cannabis ballot measure because of its title.

The Arkansas Medical Cannabis Amendment of 2024 was submitted on Jan. 12 by Stephen Lancaster of the law firm Wright Lindsey & Jennings LLP. Griffin responded to the submission, although the opinion was initially prepared by Assistant Attorney General William R. Olson on Jan. 29, explaining the reasoning behind his decision to reject the measure in its current form.

He clearly states in the beginning of this letter that his decision is not a reflection of his support or opposition to this ballot measure, or any others. “My decision to certify or reject a popular name and ballot title is unrelated to my view of the proposed measure’s merits,” Griffin began. “I am not authorized to consider the measure’s merits when considering certification.”

However, ballot titles are required to be written in a very specific way. Those who write the measures must ensure that the titles contain all of the essential facts “which would give the voter serious ground for reflection,” but also attempt to keep it brief. “The ballot title is not required to be perfect, nor is it reasonable to expect the title to address every possible legal argument the proposed measure might evoke,” Griffin explained. “The title, however, must be free from any misleading tendency—whether by amplification, omission, or fallacy—and it must not be tinged with partisan coloring. The ballot title must be honest and impartial, and it must convey an intelligible idea of the scope and significance of a proposed change in the law.”

Griffin continued to share the core reason behind the rejection, explaining that the title was not formatted properly and contained ambiguous statements. “Where the effects of a proposed measure on current law are unclear or ambiguous, I am unable to ensure the popular name and ballot title accurately reflect the proposal’s contents until the sponsor clarifies or removes the ambiguities in the proposal itself.”

Griffin is sending the ballot measure authors back to the drawing board to fix the wording. The header, for instance, currently reads “Be it Enacted by the People of the State of Arkansas,” but wording including “enacting clauses” is only required for bills, not constitutional amendments, which may cause voters to be unsure if this is a bill or a constitutional amendment. He also suggested new text to a section that discusses advertising, and ambiguous wording for “rules shall also require child-proof packaging,” addresses that “medical cannabis” as a phrase is not defined anywhere, noting that the interchangeable use of “marijuana plants” and “cannabis plants” be just “cannabis plants” to avoid confusion, and more.

If the Arkansas Medical Cannabis Amendment of 2024 is passed, it would amend the constitution to allow patients and caregivers to cultivate up to seven mature cannabis plants, as well as seven younger plants, expand the qualifying conditions of medical cannabis to include more than the current 18 conditions, allow out-of-state patients holding medical cannabis cards to purchase cannabis in Arkansas, remove fees for cannabis card applications, and allow those cards to last for three years instead of one.

It also includes a section entitled “Effect of future federal classification of marijuana” which would permit possession of up to one ounce of cannabis if the federal government decides to remove cannabis from the list of controlled substances.

The Arkansas Advocate published an article on this topic and noted that the advocate group can only begin collecting signatures once Griffin has signed off on a ballot measure. After that, they have until July 5 to submit 90,704 signatures in order to qualify for the ballot in November.

Erika Gee, an attorney representing Arkansans for Patient Access, shared a statement with the news outlet regarding what’s next. “Arkansans for Patient Access is reviewing Attorney General Tim Griffin’s ballot proposal opinion. We intend to address the issues raised and resubmit,” Gee said. “We are confident ballot language will be presented that ultimately gains approval.”

Arkansas voters legalized medical cannabis in November 2016 through Amendment 98, and sales began in May 2019. In August 2022, a recreational cannabis ballot initiative from Responsible Growth Arkansas was rejected because of its name and title. The group quickly filed a lawsuit  “to challenge the State Board of Election Commissioners’ thwarting of the will of the people and their right to adopt laws by initiative.” The Arkansas Supreme Court said that the measure would still appear on the ballot, as Arkansa Issue 4. However, in November 2022, 56.25% of voters voted no, while only 43.75% voted yes.

Late last year, the Arkansas Medical Marijuana Commission announced that medical cannabis taxes were helping to fund kids’ school lunches in the state. The commission stated that while the state collected $115 million from cannabis taxes, an estimated $87 million was granted for food insecurity.

While Arkansas approved its medical cannabis initiative back in 2016, there are still a number of limitations when compared to other states that have made similar moves. 

For example, patients can only purchase up to 2.5 ounces of medical cannabis in a 14-day period, patients under 21 cannot consume herbal forms of cannabis, dispensaries cannot provide cannabis-infused foods or drinks with more than 10mg of THC and home cultivation is not allowed, among other limitations.

With a newly proposed constitutional amendment, a cannabis industry group is looking to loosen some of the state’s current limitations. On Friday, Arkansans for Patient Access said it was submitting the ballot language for the Arkansas Medical Cannabis Amendment of 2024 to Arkansas Attorney General Tim Griffin, as reported by the Arkansas Advocate.

Potential Changes to the Arkansas Medical Cannabis Program

“The goal of this ballot proposal is to reaffirm and build upon Amendment 98 to better serve patients,” said Amy Martin, owner of The Greenery dispensary in Fort Smith. “This amendment reflects a commitment to the principles established by the state’s voters. It reduces barriers and streamlines processes so qualifying patients can access the medicines and treatment options that best serve them.”

The ballot initiative introduces a number of changes to the current medical cannabis program. 

If passed, it would allow patients and designated caregivers over the age of 21 to grow up to seven mature plants and seven younger plants. Currently, only doctors can grant patients medical cannabis cards, though the amendment would also allow physician assistants, nurse practitioners and pharmacists to do so. 

It would also allow providers to grant medical cannabis cards based on any medical need, instead of being limited to the state’s current 18 qualifying conditions. Healthcare providers would also be allowed to conduct patient assessments via telemedicine.

Additionally, the amendment would expand access to out-of-state residents and recognize patient cards from other states, along with allowing non-residents to obtain Arkansas medical cannabis cards. The initiative would also remove application fees for prospective patients seeking medical cannabis cards and increase the expiration dates for new patient cards from one to three years.

Creating an Adult-Use Cannabis Trigger Law

Along with the proposed changes to the state’s current medical cannabis program, the proposal would also create a recreational cannabis trigger law. This comes in the midst of the Biden Administration’s ongoing consideration to reschedule cannabis from Schedule I to Schedule III under the Controlled Substances Act (CSA).

The trigger law would permit Arkansas adults to possess up to an ounce of cannabis should the federal government remove cannabis from the CSA or if cannabis possession is no longer considered a federal crime. The trigger provision would limit commercial growth and distribution to cultivation facilities and dispensaries currently licensed under the state’s medical cannabis law.

Arkansas previously attempted to legalize recreational cannabis in 2022 through Issue 4, which still came with a number of strict limitations, though it was ultimately rejected by voters.

Attorney David Couch drafted the state’s original Amendment 98 to legalize medical cannabis, and while he opposed the 2022 effort, he’s shown public support for this new initiative. Similarly, patient advocate Melissa Fults was against the 2022 measure but stands behind the new effort on behalf of Arkansans for Patient Access.

The attorney general will have 10 business days to review the measure and ballot language before indicating whether or not it is fit to appear on the upcoming Arkansas ballot for voters this November. Should it be approved, canvassers have until July 5 to gather 90,704 signatures from registered voters, which would effectively qualify the initiative for the ballot.

The Arkansas Medical Marijuana Commission (AMMC) recently announced the benefits that the state’s medical cannabis program, with millions of dollars in cannabis tax funds helping to provide lunches for kids at school.

While the state has collected $115 million from cannabis taxes, $87 million went toward free or low-cost lunches for children. AMMC spokesperson Scott Hardin explained the breakdown. “A billion dollars has been spent to purchase medical marijuana but what that means for the state is that we’ve collected 115 million dollars in state tax revenue,” Hardin told ABC 7. “From that $115…$87 went to [University of Arkansas for Medical Sciences] specifically as they tried to obtain that National Cancer Institute designation. Now there’s a change. Now that funding is going to go specifically to food insecurity.”

The “low-cost” part of this means kids are paying very little for food. “What that’ll mean is, if someone is on a reduced school lunch, if they are now paying 50 cents to a dollar, that medical marijuana revenue steps in and pays that to ensure that a student gets that for free,” Hardin explained. “So really students in the state will be not having to pay whatever that burden is. 50 cents, a $1.50 to have reduced school lunch so it really is, it’s affecting Arkansans in a positive way.”

The state currently only has eight cultivators and 38 dispensaries, which Hardin said is plenty of storefronts to serve patients and address the current growth pattern. “Unless something changes, unless voters go back to the polls and either accept a modified program or a recreational program or something that’s really where we are,” he said. “The industry itself, you’re not going to see more dispensaries opening up all over the state. You’re not going to see more growers but what we are seeing is more patients. At the beginning of the year we had 89,000 patients. Now we are pushing 100,000.”

Current data, updated as of Dec. 9, shows that there are 98,099 patients with active medical cannabis ID cards. According to Hardin, the industry has far outpaced initial projections that the state’s mature market would only have approximately 50,000 active cardholders.

The most recent sales data for November 2023 shows that the state collected $257 million. Arkansas’ medical cannabis program launched in May 2019, and between then and October 2023, the state has collected a total of $988.3 million in sales. The combined sales per year breaks down sales from 2019 ($31.2 million), 2020 ($181.8 million), 2021 ($264.9 million), 2022 ($276.3 million), and 2023 ($234 million, but only between January 2023-October 2023).

According to a report from the Arkansas Times, the more accurate number for total sales since medical cannabis began has already surpassed $1 billion. “We’re totally confident we’ve surpassed that,” Hardin said.

According to Arkansas Cannabis Industry Association executive director, Bill Paschall, reaching that $1 billion mark is a sign that cannabis is doing a lot for patients in Arkansas. “It underscores the growing acceptance and recognition of the therapeutic benefits of cannabis and the commitment of the state’s medical cannabis licensees to providing safe, quality and innovative products that meet patients’ needs,” said Paschall. “The men and women employed by the marijuana industry look forward to continuing to positively impact the lives of Arkansans and contributing to the evolving cannabis landscape.”

Arkansas isn’t the only market hitting $1 billion for cannabis sales. A recent report shows that Arizona’s recreational cannabis market has also hit $1.1 billion in sales, but includes sales data from just 2023 (specifically, January 2023-September 2023). Arizona’s overall sales data shows a total of more than $billion since it began sales in January 2021.

In legal news, an Arkansas judge ruled in September that the 2018 Farm Bill takes legal precedence over the state’s ban on hemp-derived cannabinoid products like delta-8. Act 629 of 2023 that passed earlier this year banned delta-8, delta-9, and delta-10 THC products. The lawsuit was filed by four companies (Bio Gen LLC, Drippers Vape Shop LLC, The Cigarette Store LLC, and Sky Marketing Corp) whose lawyers alleged that the ban would harm their businesses. “Plaintiffs have been, and will be, harmed by Act 629, as they are unable to transport in and through Arkansas hemp-derived cannabinoid products that have been declared legal under federal law,” the lawsuit stated.

According to the Arkansas Times, a different ongoing case involves if restrictions on advertising for cannabis businesses is unconstitutional. The lawsuit was filed in 2022 by Good Day Farm, which argued that advertising restrictions violate its right to protected commercial speech. Circuit Judge Chip Welch heard arguments earlier this month, and plans to issue a ruling by the end of the year. Attorney General Tim Griffin already stated that he plans to appeal the decision, if Welch decides to rule in favor of advertising being too restrictive.

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Regulators in Arkansas on Monday revoked a medical marijuana cultivator’s license to operate after a judge ruled earlier this month that the state erred when it granted the license two years ago. Doralee Chandler, the director of the Alcoholic Beverage Control Administration and the head regulator of the state Medical Marijuana Commission (MMC), revoked the license from medicinal cannabis cultivator River Valley Relief (RVR) on November 28 at a hearing that lasted nearly an hour.

The Arkansas Medical Marijuana Commission granted RVR a license to cultivate medicinal cannabis in July 2020, making the company the last of eight growers authorized by the state. But another company, 2600 Holdings, filed a lawsuit in January 2021, arguing that RVR should not have been granted the cultivation license. The plaintiff asked the court to disqualify River Valley Relief and award the license to 2600 or provide other relief under the Arkansas Administrative Procedures Act.

Attorneys for 2600 argued that the MMC had illegally granted the license to Nolan Storm, the owner of RVR, during the state’s second round of cultivator licensing. They maintained that the action violated state law because Storm’s license application was no longer valid and the site for the cultivation operation was too close to Sebastian County Juvenile Detention Center. The plaintiff argued that the site violated state requirements that medical marijuana facilities be located at least 3,000 feet from schools, churches, and daycare centers.

The case was litigated for the state by attorneys for the DFA, which submitted a 36-page brief disputing 2600’s filing. Nolan and his legal representatives were blocked from participating in the case by Pulaski County Circuit Court Judge Herb Wright. 

Earlier this month, Wright ruled that 2600 had proven its case and should be granted relief, ordering that RVR’s license be revoked. The judge decided that the MMC’s action had exceeded the agency’s authority, which is referred to as an “ultra vires” act.

“Plaintiff has, therefore, met its burden in showing that the undisputed facts of the case, viewed in a light most favorable to Defendants, prove that the plaintiff is entitled to relief,” Wright noted in his ruling handed down on November 3. “Defendants have acted unreasonably, unlawfully, and capriciously by awarding Nolan a license.”

“An effort was clearly made by the MMC to give Nolan thread to stitch up the holes in the RVRC application,” Wright continued in his decision. “Whether that was fair or unfair to any of the applicants, it was at minimum an unconstitutional and ultra vires act.”

Arkansas License Revoked at Hearing on Monday

At a Monday hearing of the Arkansas Department of Finance and Administration (DFA), the MMC oversight agency, Nolan and his attorney Matthew Horan argued that Wright’s decision contained important errors. Nolan addressed each point while under oath during the hearing, saying that he was trying to abide by the state Medical Marijuana Commission’s rules and the guidelines of officials including the secretary of state. Among other points, the attorney argued that the cultivation site, which is 2,400 feet from the youth detention center, did not violate MMC regulations.

“There is no evidence anywhere that the detention center is operated by a public school,” Horan said, adding that the Arkansas Department of Education issued a letter saying the juvenile facility was not a school. But Chandler noted that the hearing was being held solely for the purpose of deciding on the license revocation and refused to reconsider matters settled by the court case.

“We’re not here to litigate matters over any other location,” Chandler told Nolan, according to a report from the Arkansas Times. “You need to worry about your permit and your application.”

Scott Hardin, a spokesman for the DFA, said in a statement that the formal license revocation order would likely be issued no later than the end of the week, according to a report from Arkansas news site Talk Business & Politics.

Hardin also noted that Nolan has appealed Chandler’s administrative decision to revoke the license. The appeal temporarily halts the license until after a hearing by the full board overseeing Arkansas Alcoholic Beverage Control. The next hearing of the board is scheduled for December 21, meaning that RVR will be able to continue operating at least until that time.

After Monday’s hearing, Nolan said that the case would be appealed to the Arkansas Supreme Court.

“River Valley Relief Cultivation has appealed the Pulaski Circuit Court decision to the Arkansas Supreme Court,” Nolan said in a statement to Talk Business & Politics. “RVRC has asked that proceedings be stayed until the appeal is heard. We await the decision of the Supreme Court.”