The Plaintiffs’ decision to challenge the Opinion at federal court was their cross.
By Leslie Bonilla-Muñiz, Indiana Capital Chronicle
A nearly two-year-old legal battle is over—for now—after a federal judge dismissed a lawsuit over the legality of delta-8 tetrahydrocannabinol (THC) goods and other low-THC hemp products.
James R. Sweeney II wrote that the lawsuit is “fundamentally a” “question for Indiana courts to consider.”
Delta-8 is a isomer delta-9 THC. This is the active ingredient of marijuana.
In 2023, plaintiffs 3Chi Midwest Hemp Council, and Wall’s Organics, filed suit several months after Indiana Attorney General Todd Rokita’s (R) opinion that the products were illegal.
It was in direct response to an appeal by former Indiana State Police Superintendent Doug Carter as well as the Indiana Prosecuting Attorneys Council. According to the complaint, local law enforcement took notice, and some warned retailers that they might be in trouble, or raided retailers.
The plaintiffs argued that Rokita’s opinion violates the 2018 federal Farm Bill—which removed hemp from the definition of marijuana—and similar provisions in Indiana law by “unilaterally” reclassifying their products as Schedule I controlled drugs. The plaintiffs also requested an injunction.
The judge ruled that plaintiffs have standing to file a suit. Sweeney, in a Tuesday order found that they had not “met their burden to demonstrate their alleged injury was redressable” by the Court.
Sweeney’s “problem” is that Rokita’s opinion doesn’t have legal force and it’s not law.
The judge explained that “Plaintiffs don’t seek to declare their rights under federal laws, since there is no disagreement over Farm Bill; they rather ask that the Court find that federal law preempts the Official Opinion.” The Court explained that an opinion was not state law and therefore could not be preempted.
Nullifying the opinion would still leave prosecutors and law enforcement free to interpret state law as they see fit—and so would leaving the opinion alive, per Sweeney.
Rokita, the sole defendant, was left after the prosecution and the law enforcement officers were dismissed. Judge wrote plaintiffs have “produced no evidence” to prove that [Rokita] Injunctions are not effective because no one is responsible for initiating criminal prosecutions, arresting suspects or passing criminal laws.
The Plaintiffs are responsible for their own crosses, he said. “But fundamentally, this is a dispute about the proper interpretation of state law, which…is a question for consideration by Indiana’s courts.”
The case was dismissed without prejudice. Plaintiffs can choose whether to file again in the state court.
Meanwhile, lawmakers are still unable to agree on whether or not the products in question are legal. They have indicated a Senate-House stalemate is unlikely to give—but Senate Bill 478, regulating this “gray area,” remains alive in the ongoing legislative session.
The original publication of this story is Indiana Capital Chronicle.
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