A hemp crop waits to be harvested in Lincolnshire for British CBD oil producer Crop England on Aug. 27, 2021, in Grantham, England. (Photo by Christopher Furlong/Getty Images)

A hemp crop waits to be harvested in Lincolnshire for British CBD oil producer Crop England on Aug. 27, 2021, in Grantham, England. (Photo by Christopher Furlong/Getty Images)

Hemp growers sue Alaska agriculture officials in attempt to keep hemp products legal

Plaintiffs say millions of dollars in products are at stake and could be removed from shelves.

Clarification: This article has been updated to clarify the differences between legal marijuana and hemp products in Alaska.

A coalition of hemp growers and manufacturers has sued the Alaska Department of Natural Resources, claiming that new limits on intoxicating hemp products are unconstitutional.

The lawsuit, by the Alaska Industrial Hemp Association and four businesses, was filed Thursday in U.S. District Court in Anchorage.

Attorney Christopher Hoke, representing the plaintiffs, said the rules mean that virtually every hemp-derived product made in the state and for sale here — drinks, gummies, cookies and more — will become illegal.

“We’re just harming our own here,” he said.

He has requested a temporary restraining order to keep the ban from coming into effect while the lawsuit proceeds.

“We’ve asked for expedited consideration,” Hoke said.

The DNR, its commissioner, the state director of agriculture and Lt. Gov. Nancy Dahlstrom have been named in the lawsuit but have not yet filed a preliminary response to the complaint.

The lawsuit stems from a regulation approved in October by Dahlstrom at the behest of the DNR.

The regulation, which took effect Friday, states in part that DNR may not approve “an industrial hemp product that contains delta-9-THC.”

Alaska’s marijuana industry is tightly regulated, with limits on who may buy products that contain THC — the leading psychoactive ingredient in marijuana — and how much THC those products may contain.

Until Friday, the restrictions that applied to legal marijuana in Alaska largely didn’t exist in Alaska for products that contain delta-9-THC derived from hemp. In 2018, Congress passed — and President Donald Trump signed — a farm bill that stated that a hemp product could contain no more than 0.3% delta-9-THC by weight. There were few rules about limiting products by quantity, the buyer’s age, or potency, and there were few rules about licensing participants in the industry. Hemp products could also be sold across state lines. Marijuana products couldn’t.

Some hemp manufacturers believe that limit the farm bill’s potency limit applies to a finished product, not a plant, and have been selling foods and beverages with large amounts of delta-9.

Some hemp manufacturers believe that limit applies to a finished product, not a plant, and have been selling foods and beverages with large amounts of delta-9.

Those products can be sold without an age limit and at businesses that aren’t licensed to sell marijuana, making them widely available.

Congress hasn’t provided additional guidance on the law, so several states have jumped into the issue, passing laws or writing regulations to clarify their stance.

Alaska’s advisory task force on marijuana issues, commissioned by Gov. Mike Dunleavy, made the delta-9 issue a top priority, and the state’s marijuana trade group backed off a push for legislation here after state agriculture officials said they would address it through regulation.

In October, when Dahlstrom signed the new regulation, officials said it would prevent negative health consequences for young Alaskans.

Members of the hemp industry fired back, saying that their products are no different than those sold by the legal marijuana industry, and they accused officials of improperly collaborating with the marijuana industry to benefit that sector.

Dan Ferguson, owner of a major Anchorage hemp business, told KTUU-TV in Anchorage that the new regulation is “effectively a kill shot from the cannabis industry to the hemp industry” in Alaska.

He and other hemp businesses say they’ve now been left with millions of dollars in products that they cannot legally sell in Alaska.

“It seems like they want to outright prohibit any hemp products while they allow the marijuana-producing companies to produce products that are exactly the same,” Hoke said.

In the complaint, he argues that the new rules are a violation of the U.S. Constitution’s commerce clause.

“All hemp is federally lawful to possess, and hemp that fits the federal definition may not be interfered with as it flows through interstate commerce,” the complaint said.

The case has been assigned to Judge Sharon Gleason. No schedule has yet been set for written arguments on the restraining order.

“I think this should fall our way,” Hoke said.

• James Brooks is a longtime Alaska reporter, having previously worked at the Anchorage Daily News, Juneau Empire, Kodiak Mirror and Fairbanks Daily News-Miner. This article originally appeared online at alaskabeacon.com. Alaska Beacon, an affiliate of States Newsroom, is an independent, nonpartisan news organization focused on connecting Alaskans to their state government.

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