Georgia: The Latest Attack on Delta 8

There is a new fight in the battle to keep Delta 8 and other cannabinoids legal in Georgia. Two vape shops in the state are suing after Gwinnett County District Attorney Patsy Austin-Gaston issued a statement on January 25th, which claims that Delta 8 and Delta 10 are Schedule I drugs according to Georgia’s Hemp Farming Act (HB 213) and that “those found to be possessing, selling, or distributing these substances may be subject to felony punishment and are at risk of having their assets seized and forfeited to the state.”

This statement from the District Attorney’s office led to a raid on Element Distribution, a vaping shop in Gwinnet County. The raid was not conducted by the Gwinnett County Police Department, but by a multi-agency task force which involved a special response team. No charges or arrests were made, but Element Distribution says that around $2 million dollars worth of hemp products were taken from them in the raid.

Smoke shops in Catoosa, Dade, and Walker County encountered similar problems when the Lookout Mountain Drug Task Force began serving papers ordering shop owners to stop selling Delta 8, Delta 10, and other hemp derived cannabinoids. Owners of these shops say that they believed they were running their businesses in accordance with state and federal laws

In response to these and other actions, two Georgia vape shop companies, Sass Group LLC and Great Vape LLC, have filed a lawsuit against Gwinnet County District Attorney Patsy Austin-Gaston, as well as the state of Georgia. 

What Does The Lawsuit Say?

This lawsuit seeks a declaratory judgment that would ensure that Delta 8, Delta 10, CBD, CBN, CBG, and other hemp products stay legal. The plaintiffs argue that these products are already legal under Georgia Code § 2-23-3 which defines legal hemp products as: “all products with the federally defined THC level for hemp derived from, or made by, processing plant parts,” and describes the federally defined THC level as: “a Delta 9 THC concentration of not more than 0.3 percent on a dry weight basis, or the THC concentration for hemp defined in 7 U.S.C. Section 5940, whichever is greater.”

Thomas Church, an attorney working on the case, said in an interview with 11ALIVE News that, “If you look at the language of the Hemp Bill (2019 Georgia Hemp Farming Act) that Georgia passed, it’s very explicit, hemp and all of its extracts, all derivatives, and critically here, all of its cannabinoids, are legal.”

There has been some discrepancy among lawmakers in the past over whether or not Delta 8 was federally legal, as it does appear on the Drug Enforcement Administration’s (DEA) controlled substance list despite being explicitly protected as a hemp product by the Agriculture Improvement Act of 2018 (commonly referred to as the 2018 Farm Bill). However, these concerns have largely been assuaged by the DEA’s interim final rule, which states that hemp derived tetrahydrocannabinols like Delta 8 THC are excluded from the Controlled Substances Act. This means that Delta 8 is legal on both the state and federal level.

The lawsuit asserts that the effective legalization of Delta 8 and other hemp derived cannabinoids is not an unexpected loophole, but was in fact intended by both state and federal legislators. It states that as a result of these changes, the hemp industry in Georgia (and the rest of the United States) has seen rapid expansion. It claims that until now, the sale of hemp products such as oils, flower, topical creams, concentrates, and edibles, has largely gone on unimpeded.

For example, the USA-CBD Expo, hosted in June of last year at the Georgia World Congress Center, held a reported 270 vendors at the event, and was attended by over 7,000 people who use or distribute hemp derived cannabinoids like Delta 8. The event was described as a “completely sold-out show” where hemp enthusiasts could gather to listen to the multiple topics presented by more than 70 speakers.

But due to actions taken by Gwinnett County’s District Attorney, the industry has taken a pause. Many Georgia shops have pulled their products from the shelf to protect themselves from harmful litigation that could threaten their business. The Plaintiffs of this lawsuit put some numbers to these claims. Sass Group LLC (Bloom Smoke & Vape) reports that the change in policy has cost them over 30% of their income, While Great Vape LLC reports a whopping 60% loss of income.

Overall, the Plaintiffs maintain that the State of Georgia has acted outside of its lawful authority, and is in violation of the Plaintiffs’ right to due process under the Georgia Constitution. These actions have had a clear and damaging effect on the hemp industry in Georgia.

What’s Next?

The lawsuit is currently awaiting a final decision that could set a precedent for hemp derived cannabinoids in Georgia. On March 18th, a temporary restraining order was placed by Fulton County Judge Craig Schwall against Gwinnett County’s District Attorney Patsy Austin-Gaston, effectively preventing her from directing her office or agents to engage in criminal enforcement relating to the sale and distribution of Delta 8 and other cannabinoids. This temporary restraining order is set to last for 30 days.

Interestingly, the law firm leading this suit has stated that neither Georgia State nor the Gwinnett County District Attorney’s office sent a representative to defend their position in court on March 22nd, which suggests that they may not be willing to fight this lawsuit in their full capacity. The law firm says that the judge expressed “serious concerns” that the Gwinnett County District Attorney’s actions were in contradiction with Georgia hemp laws. Nevertheless, these actions pose a serious threat to Delta 8, Delta 10, and other cannabinoids.

How Do I Keep Delta 8 Legal?

There are multiple fronts in the battle to keep Delta 8 and other hemp derived cannabinoids legal. Regardless of where you live in the United States, you can help by contacting your state and federal representatives through phone, email, and mailed letters, and letting them know that you demand an end to the war on hemp and cannabinoids, and that you support common sense regulations regarding adult use so that the hemp industry can continue to thrive. Together, we can ensure these cannabinoids remain legal. 

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