A coalition of hemp shops is waiting on a final ruling in their lawsuit to re-legalize Delta-8 in Wyoming. Delta-8 is a psychoactive compound found in cannabis, but it’s less potent than the main compound that gets marijuana users high.
Delta-8 had been legal to sell in Wyoming for a few years under federal law. But the state outlawed the substance last year.
Hemp shops that sold Delta-8 immediately launched a lawsuit to overturn the state ban. A federal court ruled against them last summer, and now they’re appealing the case to the 10th Circuit.
Sam Watt is a plaintiff who had to shutter two of his five stores because of the new law. He’s hoping for a ruling that puts Delta-8 back on his shelves.
"All you can do is cross your fingers and hope the court sees my side," he said.
The Delta-8 ban hurt his bottom line, but he says it has also meant less tax revenue for Wyoming and less freedom for state residents.
"The freedom of the people, I'm a true believer in that," Watt said. "It's just like: Where is the justification of the legislators saying what we can and can’t do?"
Marijuana and hemp laws are complex and vary state-by-state, but those complexities start with the plants and their compounds.
Marijuana and hemp are considered two versions of the same plant, cannabis sativa, and contain many of the same compounds. However, hemp has much less of what is known as "Delta-9 THC," sometimes just called "THC," which is the main compound that gets marijuana users high.
Delta-8 is technically "Delta-8 THC," although it’s frequently just called Delta-8. As another psychoactive compound, Delta-8 can also get a user high, but it's less potent than Delta-9 and considered milder by those who use it.
Federally, the 2018 Farm Bill removed hemp, but not marijuana, from the Controlled Substances Act. That made Delta-8 legal to synthesize or extract, as long as one extracted it from hemp, not marijuana.
Marijuana remains illegal at the federal level, though individual states have legalized its sale within their borders for more than a decade.
In Wyoming, both medical and recreational marijuana have been, and remain, illegal. But the passage of the 2018 Farm Bill made hemp legal across the country, including in Wyoming, and state lawmakers confirmed its legal status in Wyoming in 2019. That began the five-year window in which Delta-8 was legal in Wyoming.
Stores like Watt’s began selling Delta-8 alongside their other wares, until July 1, 2024, the day Wyoming's Delta-8 ban took effect.
Watt echoed others in his industry who would like to see regulations rather than prohibitions. He said clear rules keep people safe and build consumer confidence.
"I just want it regulated," Watt said. "I want it licensed so we keep the bad actors out of the state."
Other states have responded to the federal-level legalization with state-level regulation. Texas, for example, treats the substance like alcohol, limiting the sale of Delta-8 to those over 21, requiring vendors to card customers, and conducting undercover operations to catch illegal sales. Ohio is considering similar rules, weighing a bill that would also ban advertising to children.
Research into the effects, benefits and risks of Delta-8 consumption is lacking, so health experts warn against assuming it's safe. The drug is not regulated by the FDA. Under Biden, the federal agency warned Americans about accidental consumption.
In Wyoming, lawyers for the coalition of hemp shops, as well as lawyers for the state government, gave oral arguments in the 10th Circuit Court of Appeals in May.
Donna Domonkos, a lawyer for the hemp shops, argued federal law specifically says the states can regulate production of hemp. But it doesn't specify who decides rules about sale or possession, so, she argued, the federal government maintains that right and has allowed for Delta-8's sale and possession.
The court wasn't convinced.
"You're drawing an inference there," Judge Harris Hartz said. "It's not a stupid inference, but I'm not sure it's a persuasive one."
Jonathan Sater, a lawyer for the state of Wyoming, argued that the Equality State, or any other, is allowed to be more restrictive in this case than the federal government.
"There are just certain substances that the state of Wyoming has determined are inappropriate for the community based on health, morals and safety, which it's clearly allowed to do under controlling precedent," he said.
All parties now await a final ruling, which could take months or more.
