PHOENIX (CN) - The Arizona hemp industry argued in state court Friday that retailers selling low-THC hemp products like delta-8 and CBD are immune from the state's marijuana laws and protected by the 2018 federal Farm Bill.
Spending more than three hours differentiating the scientific and legal differences between marijuana and hemp, both derived from the same plant cannabis sativa but with varying levels of the psychoactive compound THC, the Arizona Hemp Industry Trade Association asked Maricopa County Judge Randall Warren to issue a preliminary injunction preventing Attorney General Kris Mayes from taking legal action against hemp product distributors and retailers.
Mayes first declared all hemp products illegal to sell without a marijuana dispensary license in March 2024 and threatened retailers with civil and criminal enforcement in March 2025.
In a Phoenix courtroom Friday afternoon, state attorneys said Mayes' enforcement threat is focused on "intoxicating THC products," but Hemp Industry Trade Association representatives say that descriptor is misleading and unscientific.
"I'm aware she's focused on the hemp products, but the problem with that is CBD does have some level of THC and could be psychoactive," association CEO Sully Sullivan told state attorney Clinton Garrett.
Sullivan said that because all cannabis-derived products, even CBD, contain some amounts of THC, the state can't regulate products based on what they consider "intoxicating," rather than follow the 2018 Farm Bill.
That bill classifies any cannabis product that contains a THC concentration of 0.3% or more as marijuana and anything less than that, typically delta-8 or CBD, as legal hemp. The bill requires cannabis products to be tested only for delta-9, which is the most likely cannabinoid to naturally occur in concentrations great enough to be classified as marijuana.
Because federal law distinguishes hemp from marijuana, the association argues that the sale of hemp products like delta-8 cannot be subject to state marijuana laws, while Mayes said in 2024 that the law, Proposition 207, applies to "all intoxicating THC products."
That statute, which legalized the sale of marijuana in dispensaries across the state, defines marijuana as "all parts of the plant genus cannabis" but, at the same time, clarifies that the definition does not include industrial hemp, even though that's the same plant.
"Did HITA's members continue to sell intoxicating THC products" after Mayes' 2024 legal opinion? Garrett asked.
"Hemp THC products, yes," Sullivan corrected.
After Mayes' March threat, Sullivan said the association advised all members to stop selling hemp products until their lawsuit is resolved.
Association attorney Julie Gunnigle said in a press conference Tuesday that association members have reported attempted undercover sting operations at their businesses, though the state has reported no hemp-related busts. Maricopa County Detective Matthew Shay said officers are told to impound hemp products but not to prosecute sellers pending the legal dispute.
State attorneys presented a few examples of products found in Arizona smoke shops, including a Snoop Dogg brand edible product called "Dogg lbs." Spectators in the gallery chuckled at the names of that and other products and again late in the day, when a state attorney noted the time as 4:20 p.m.
Christopher Ware, founder of a cannabinoid research and testing facility in Kentucky that tests some Arizona products, testified that there's no scientific method to determine whether a product is "intoxicating" aside from a toxicology report on an individual, which would be subjective to the user. He added that there's a "wide variance of psychoactivity" between different hemp products, making it more difficult to determine what falls under the scope of Arizona's marijuana law.
Legal framework aside, the association claims that Mayes' threat caused actual harm to the industry, discouraging multiple sellers and manufacturers from renewing their memberships from 2025. Sullivan said the organization was forced to cancel and refund tickets for its largest annual fundraiser, the Sonoran Hemp Brew Festival.
Sullivan cited a Whitney Economics report that concluded that hemp-derived consumable products could provide more than 8,000 jobs and $300 million in wages to the state. State attorneys dismissed the study as too speculative.
Warner said he will make a decision sometime next week.
Source: Courthouse News Service
