Two Courts, One Message: States Can Ban Intoxicating Hemp
In back-to-back rulings, the Fourth Circuit and now the Eighth Circuit have rejected challenges from hemp businesses seeking to invalidate state bans on hemp-derived THC products like delta-8, delta-10, THCA, and HHC.
Despite relying on different legal analyses, both courts came to the same conclusion: the 2018 Farm Bill does not preempt stricter state laws regulating cannabinoids derived from hemp. These rulings are a wake-up call to hemp manufacturers, retailers, and beverage brands banking on the Farm Bill as a shield against growing state crackdowns.
Arkansas Hemp Law Upheld in Bio Gen v. Huckabee
The Eighth Circuit’s June 2025 ruling in Bio Gen LLC v. Huckabee overturned a lower court’s injunction against Arkansas Act 629, a 2023 law that criminalizes most intoxicating hemp products.
Key provisions of Act 629:
- Redefined legal hemp by tying the 0.3% delta-9 THC limit to the CBD content instead of total product weight.
- Automatically banned a range of psychoactive cannabinoids, including delta-8 THC, HHC, and others—regardless of concentration.
- Added these substances to the Arkansas Controlled Substances Act.
Bio Gen’s challenge:
- Asserted that the Farm Bill preempted Act 629 under the Supremacy Clause.
- Claimed the law violated the Dormant Commerce Clause and was unconstitutionally vague.
The Eighth Circuit disagreed on all fronts, vacated the injunction, and ruled decisively in favor of Arkansas.
Eighth Circuit’s Reasoning: Farm Bill’s Anti-Preemption Clause Controls
Unlike other courts that analyze preemption traditionally, the Eighth Circuit anchored its ruling in the 2018 Farm Bill’s anti-preemption clause, codified at 7 U.S.C. § 1639p(a)(3)(A):
“Nothing in this subsection preempts or limits any law of a State… that regulates the production of hemp and is more stringent than this subchapter.”
Why the challenge failed:
- The court held that Congress explicitly allowed states to regulate hemp more strictly than federal law.
- It emphasized that the Farm Bill’s only express preemption is in § 10114(b), which prohibits states from blocking transportation of federally legal hemp across state lines—not regulating it within their borders.
- Act 629 includes a “savings clause” (§ 7) that permits the continuous transportation of federally compliant hemp through Arkansas—resolving any potential express conflict.
This “savings clause” became the linchpin of the ruling.
Fourth Circuit Took a Different Path: Virginia’s Total THC Cap Survives
In Northern Virginia Hemp and Agriculture v. Virginia, decided in January 2025, the Fourth Circuit upheld Virginia’s law capping “total THC” in hemp products at 0.3%—including delta-8, delta-10, and THCA.
But unlike the Eighth Circuit, the Fourth did not focus on the anti-preemption clause. Instead, it applied the classic federal preemption doctrines:
- Express preemption: Rejected because Congress didn’t explicitly bar states from enacting tougher standards.
- Field preemption: Denied, since hemp regulation is traditionally within states’ health and safety powers.
- Conflict preemption: The court held that the Farm Bill didn’t create a national right to retail intoxicating hemp products—it just removed the federal ban.
Notably, the court gave minimal attention to the Farm Bill’s savings clause, focusing instead on the Constitution’s allocation of state authority over public health.
Dormant Commerce Clause Claims Rejected in Both Cases
Both circuits dismissed Dormant Commerce Clause arguments:
- No facial discrimination: The laws applied equally to in-state and out-of-state businesses.
- No protectionism: States weren’t favoring their own producers or retailers.
- Incidental burden justified: The laws served legitimate public health goals—especially around youth exposure to psychoactive cannabinoids.
Arguments that out-of-state companies lost access to a market, or that hemp from Arkansas or Virginia was uniquely desirable, were deemed insufficient to establish constitutional violations.
No Preemption, No Vagueness, No Relief
The Eighth Circuit also rejected:
- Void for vagueness claims: Terms like “continuous transportation” and “psychoactive cannabinoids” were not impermissibly vague, especially when read alongside Arkansas’s Controlled Substances Act.
- Ex parte Young sovereign immunity exception: Claims against Governor Sanders and Attorney General Griffin were barred because they lacked direct enforcement authority under Act 629.
What This Means for Hemp and THC Beverage Businesses
These rulings collectively underscore a critical legal reality for hemp beverage brands, CBD product companies, and retailers:
The 2018 Farm Bill is not a federal shield for hemp-derived THC commerce.
- States retain broad power to restrict or ban cannabinoids—even if products are “federally legal.”
- Total THC caps, delta-8 bans, and synthetic THC prohibitions will likely survive challenge unless they violate transportation protections under § 10114.
- If you’re shipping, formulating, or marketing hemp-derived intoxicants, you must comply with state law.
Final Thought: The Door May Be Open, But the States Still Hold the Key
The Fourth and Eighth Circuits may have reached the same outcome, but their analytical divergence matters. The Eighth Circuit treated the Farm Bill’s anti-preemption clause as dispositive, while the Fourth barely mentioned it.
That split in approach could shape future challenges—especially if another federal court is persuaded to give greater weight to conflict preemption or federal regulatory intent under evolving Farm Bill reauthorizations. But for now, the message is clear: the 2018 Farm Bill opened the door for hemp—it didn’t lock it behind the states.