PHOENIX (CN) - The Hemp Industry Trade Association of Arizona plans to appeal a denied petition that sought to enjoin the state attorney general from enforcing marijuana laws against sellers of chemically distinct hemp products.

While federal law differentiates high THC marijuana from low THC hemp, both of the same plant, cannabis sativa, a state judge ruled Wednesday that Arizona law prohibits the retail sale of all THC products.

"The THC products at issue are not 'industrial hemp' under Arizona's Hemp Act. Maricopa County Judge Randall Warren wrote Wednesday. "Industrial hemp means the plant itself, which the Legislature has deemed a lawful commodity. Products with psychoactive THC - even if derived from hemp and regardless of the concentration - may only be sold through licensed dispensaries."

Warren denied the plaintiffs' motion for preliminary injunction, allowing prosecution of all THC sales outside of licensed dispensaries. Industry members say they will soon take the case to the Arizona Court of Appeals.

"We respect the court, but we believe this reading overlooks federal law and the Legislature's intent to foster a thriving hemp market, retail owner Mohammed Lofty said in a press release. "Our legal team is preparing an expedited appeal and exploring legislative solutions that will give retailers and consumers a clear, workable path forward.

For now, industry leaders advise retailers not to sell any THC products, though the state has yet to take enforcement action.

Under the 2018 Farm Bill, hemp is defined as cannabis with less than 0.3% delta-9 THC, allowing retailers to sell low-THC hemp products like delta-8, delta-10, and CBD oil, while licensed dispensaries sell higher THC marijuana.

In March 2024, Arizona Attorney General Kris Mayes declared all "intoxicating THC products" illegal to sell without a dispensary license and warned that civil and criminal enforcement would begin in March 2025.

The Hemp Industry Trade Association sued in April, arguing that no law defines what is or isn't "intoxicating," and that the state must instead base its regulations on the federal 2018 Farm Bill and Arizona's 2018 Hemp Act.

In an 11-page ruling, Warren agreed with the plaintiffs that Arizona law doesn't define intoxicating, but found that all hemp-derived products fall under the legal definition of cannabis and therefore should be treated as a narcotic drug. 

"The issue here is whether 'industrial hemp' includes products for human consumption which are made with hemp-derived THC, and which have less than 0.3% of delta-9 THC by dry weight," Warren wrote. "It does not. This is clear from both the Hemp Act and Arizona's criminal statutes governing marijuana and THC."

Arizona's 2018 Hemp Act, passed as a pilot program, defines hemp as part of the cannabis plant, not its derived products, and makes clear it should not interfere with the state's strict marijuana regulations. The law requires pre-cultivation testing to differentiate whether the plant is hemp or marijuana based on delta-9 THC levels, but it does not require further testing of hemp-derived consumables, which may contain other cannabinoids like delta-8 or delta-10.

The law also defines "hemp products" differently from hemp, which Warren says is evidence that the Legislature intended the two to be treated differently. 

While the ballot initiative that legalized the sale of marijuana in 2020 clearly excludes hemp from the definition of marijuana, Arizona's narcotics statute makes no such exception, defining marijuana as any part of the cannabis plant.

"By this definition, things made from THC are prohibited narcotic drugs under A.R.S. 13-3408," Warren wrote. "This includes any product containing THC derived from the plant cannabis sativa, whether a low-THC cultivar or a high-THC cultivar. 

At oral arguments last week, state attorneys argued that they want to regulate "intoxicating THC products," but the Hemp Industry Trade Association says there's no such legal distinction.

"HITA is correct," Warren wrote. "The Hemp Act makes no mention of whether a product is intoxicating. But it is not the Hemp Act that makes the product legal or illegal. It is Arizona's criminal code."

"The court's recognition that Arizona law doesn't separate 'intoxicating' from 'non-intoxicating' cannabinoids affirms a key part of our case - and our position, " he said in a press release. "I stand with this industry every single day. This work is meaningful, and it's worth fighting for. We are moving forward - with purpose, with resolve, and with the full strength of our community."

The attorney general's office hasn't replied to a request for comment.

Source: Courthouse News Service