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

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)

(James Brooks/Alaska Beacon) – 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, those limits 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.

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.