Arizona AG Says Hemp-Synthesized Intoxicants Can’t Be Sold at Non-Dispensaries

Arizona Attorney General Kris Mayes recently issued a formal legal opinion on March 11, which addressed a question sent by Sen. Steve Montenegro and Sen. T.J. Shope, which inquired if selling delta-8 THC products (which also covers delta-10 products and any other “hemp-synthesized intoxicants”) at smoke shops or convenience stores violates state law.

Mayes’ summary answer immediately responds to the presented question. “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,” Mayes wrote. “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.”

The opinion sets up an analysis supported with background history of cannabis in Arizona, starting with medical cannabis legalization in 2010, the effects of the 2018 Farm Bill, the state’s legalization of industrial hemp for some purposes (also in 2018), and the following surge in delta-8 THC products.

Mayes also utilizes Food and Drug Administration (FDA) concerns about unregulated delta-8 THC. The FDA previously said that “[s]ome manufacturers may use potentially unsafe household chemicals to make delta-8 THC through this chemical synthesis process,” and “[t]he final delta-8 THC product may have potentially harmful by-products (contaminants) due to the chemicals used in the process.” Further accounts claim unsanitary settings where products are processed, calling it a “’quite a soup’ of by-products and other unwanted compounds.” Also, Mayes includes that the FDA has received 104 reports regarding adverse effects of delta-8 THC product consumption between December 2020-February 2022, as well as 2,362 “exposure cases” involving delta-8.

Following this, Mayes begins the analysis portion of the legal opinion. “You have asked this Office to examine whether entities that do not possess a license to sell cannabis products by Health Services can lawfully sell products containing delta-8 THC or similar hemp-synthesized intoxicants,” Mayes wrote. “The answer to that question depends on whether products containing hemp-synthesized intoxicants constitute ‘controlled substances\’ and/or ‘industrial hemp’ under Arizona law. As explained below, we conclude that state law prevents entities not appropriately licensed by Health Services from selling products containing hemp-synthesized intoxicants like delta-8 THC.”

Mayes cites that delta-8 THC products are listed as a controlled substance in Arizona, and that the state’s industrial hemp program “does not exempt hemp-synthesized intoxicants from Health Services’ regulation.”

State law defines cannabis as “all parts of any plant of the genus cannabis whether growing or not, and the seeds of such plant.” Mayes included a 2019 court case, State v. Jones, in which the Supreme Court ruled on whether the state definition of cannabis also applies to hashish or cannabis extracts, to determine if medical cannabis patients are protected if they use extracts instead of dried cannabis flower. “‘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 ruling stated.

However, Mayes explained that this case does not apply to delta-8. “Jones’ plain import is that because [Arizona Medical Marijuana Act] legalized marijuana—an intoxicating substance—for certain purposes, it must be understood to have legalized a materially similar intoxicating extract of marijuana. Nothing in the case’s holding or reasoning supports its extension to the synthesis of an intoxicating product from a non-intoxicating product.”

Finally, the opinion ends with a final point that although the industrial hemp law was incorporated into federal law, it does not legalize delta-8 THC products.

Mayes concludes her opinion and reiterates that delta-8 THC products, as well as other hemp-synthesized intoxicants, can’t legally be sold by unlicensed sellers. “Arizona’s 2018 industrial hemp law did not create an exception to these laws,” she wrote. “Rather, in contrast to the federal Farm Bill, the industrial hemp law omitted hemp ‘extracts’ and ‘derivatives’ from the definition of industrial hemp and expressly provided that the State wished to ‘maintain strict control of marijuana.’ Delta-8’s sale by unlicensed entities like convenience stores and smoke shops is therefore unlawful.”

The Arizona Mirror spoke with Jonathan Udell, Arizona NORML communications director, about Mayes’ legal opinion, stating that she is giving the state’s cannabis industry a monopoly. “This is Attorney General Mayes giving the marijuana industry something that the legislature would not,” Udell said. “It’s a disappointing outcome.”

Udell provided an example, explaining that the Arizona Dispensaries Association (ADA) has introduced legislation in the past to regulate hemp-derived THC products by banning sales of such products or making it legal to sell them only at licensed dispensaries. According to a campaign finance report obtained by the Arizona Mirror, the ADA provided $40,000 to a political committee that spent approximately $367,000 in order to assist Mayes in getting elected to her position.

ADA executive director, Ann Torez, sent a statement to the news outlet, approving of Mayes’ opinion. “We believe it reflects the intent of Arizona’s voters and most importantly is in the best interest of public health and safety,” Torez said.

Additionally, the Arizona Mirror spoke with Phoenix-based attorney Tom Dean, who claims that Mayes’ legal opinion is very similar to a rebuttal of a legal analysis that he provided last year. “It’s just yet another example of what I think is a wrongheaded approach to marijuana policy in general,” Dean said. He added that Mayes’ opinion isn’t legally binding, and a lawsuit would be necessary in order to pursue a legal conclusion to the argument.