By Hannah Shields
Wyoming Tribune Eagle
Via- Wyoming News Exchange

CHEYENNE — Several Wyoming hemp stores are fighting against the state’s blanket ban on delta-8 and similar hemp products, which started July 1. But one Cheyenne hemp store owner said she’s actually in favor of the ban.

Rachelle Tabor, owner of Natural Wellness CBD, said she and her husband fought hard to help get the bill through the Wyoming Legislature earlier this year.

“I don’t like the fact that they are getting people high under the pretense of hemp, which is my business,” Tabor said. “I’m not in the business of getting people high. I want to get people well. And now these consumers are all confused.”

Tabor and her husband, David, opened their hemp store in Cheyenne in 2019, and own two other stores in Estes Park and Greeley, Colorado. Her company was one of the first hemp stores to open in Wyoming, she said, and they were heavily scrutinized by local law enforcement.

“They were on top of us,” Tabor said. “Then overnight, these other companies come in. They’re selling mushrooms, and they’re selling this delta-8. And how they’ve been allowed to get away with it, I don’t really understand.”

Tabor said she was concerned about the potential health risks of delta-8 products. The Food and Drug Administration has issued warnings about the health risks of delta-8 consumption, including “potential harmful chemicals” used in the process of creating delta-8 concentrations.

A lawsuit from Wyoming’s hemp industry sprung up after the state Legislature passed a law, effective July 1, that redefines “hemp” and bans the addition of synthetic substances to hemp or hemp products, such as delta-8.

Specifically, Senate Enrolled Act 24 prohibits “the addition of synthetic substances or other additives to hemp.” It also redefines the state’s definition of “hemp” to exclude any synthetic substance, which is also defined under the law as “any synthetic THC, synthetic cannabinoid or any other drug or psychoactive substance.”

Hemp stores involved in the lawsuit, Green Room LLC, et. al., v. State of Wyoming, et. al., claim in the lawsuit that the ban on delta-8 products violates the 2018 Farm Bill, which legalized hemp products containing up to 0.3% delta-9 THC on a dry weight basis.

Any product containing more than 0.3% delta-9 THC is considered marijuana under the bill. What the bill doesn’t mention, however, is the delta-8 or delta-10 cannabinoids, hence the “perceived loophole” by the hemp industry. Plaintiffs also sought either a restraining order or an injunction against SEA 24, which would have put a temporary hold on the ban.

A hearing was held July 12 in federal court to address the motion. A week later, U.S. District Judge Kelly H. Rankin officially denied both the injunction and restraining order on insufficient grounds.

Rankin said in his Friday decision that the 2018 Farm Bill allows states “to impose more stringent restrictions” on hemp regulation.

He also said the new Wyoming statute “places an insignificant burden on interstate commerce” and, earlier in the court document, said that granting an injunction would “run contrary to the public interest.”

“SEA 24 falls squarely within Wyoming’s power to enact safety regulations,” Rankin wrote. “Its prohibitions do not regulate private property, but ban substances Wyoming has deemed harmful to its citizens through the legislative process.”

Colorado delta-8 ban

The Cowboy State’s neighbor to the south banned the sale of delta-8 products in 2023, but allows delta-8 to be manufactured and sold to other states where delta-8 is still legal. In 2022, a task force was created in Colorado to provide a list of recommendations to the Colorado General Assembly on regulating intoxicating hemp products.

“Delta-8 products are new,” said Colorado Natural Medicine Division Senior Policy Director Allison Robinette. “And so we don’t have a whole lot of data or adverse health events to say this is what you can expect as a side effect from consuming delta-8.”

The task force was overseen by the state’s Department of Revenue (CDOR), which houses the Marijuana Enforcement Division; Department of Public Health and Environment, which oversees Colorado’s hemp industry; and Department of Agriculture. Half of the members were hemp industry representatives, such as manufacturers and retailers, and the other half was made up of cannabis and marijuana regulation representatives.

Task force members discussed at length the difference between naturally occurring cannabinoids, semi-synthetic cannabinoids and synthetic cannabinoids, Robinette said, and how to regulate these different classes.

A big point of discussion in the task force was whether delta-8 is synthetic, semi-synthetic or naturally occurring, she said.

Most of the task force members, however, decided that because delta-8 naturally occurs in such small doses in the hemp plant, it is not realistically extracted and has to be chemically converted from a different cannabinoid. Colorado Senate Bill 23-271 gave the state’s Marijuana Enforcement Division the authority to regulate synthetic cannabinoids, the sales of which are strictly prohibited.

A ban on delta-8, or CBD?

Stakeholders in the lawsuit testified that the Wyoming bill’s language is “unclear” and technically bans all CBD products sold in the state. PolyXtracts owner and chief scientific officer Jeremy Banks pointed out a couple of major flaws in how SEA 24 is written.

For starters, Banks said legislators are using “the wrong definition of ‘psychoactive,’” since nicotine, coffee and painkillers all have psychoactive properties.

But the biggest concern he had for the bill is the inclusion of “psychoactive structural isomers” in its definition of THC. SEA 24 prohibits “the sale of hemp with THC or psychoactive substances as specified.” Banks said “psychoactive structural isomers” apply to CBD, because CBD is a psychoactive structural isomer of THC.

“They actually made all hemp illegal by putting in ‘psychoactive structural isomer,’” Banks said. “That’s the biggest thing.”

Banks said, if lawmakers wanted to target delta-8 and other similar products without wiping out all CBD, there are a few suggested changes. For one, they could remove the structural portion in the bill, or, two, they could change the verbiage from “psychoactive” to “psychotropic” or “intoxicating.”

Banks testified on July 12, but said he didn’t get a chance to go over his concerns about the vagueness of the bill’s language. The hearing was limited to arguments regarding the injunction and restraining order, he said.

Rankin addressed arguments on the bill’s vague language in his Friday decision, where he stated, “SEA 24 is sufficiently clear in what it does.”

“The gravamen of their argument at the hearing was that it appears CBD is now banned,” Rankin wrote. “That is not the case, and Defendants affirmatively agreed CBD is not banned.”

Rankin said the Legislature specifically banned the addition of “synthetic substances to hemp or hemp products.”

He said this amendment to the state’s definition of hemp is clear, and defined “synthetic” as “artificial.”

“What the addition of ‘synthetic substances’ does is prohibit the addition of artificial psychoactive substances to hemp products,” Rankin wrote. “Assuming there is ambiguity, SEA 24’s purpose and the legislative intent was to exclude those artificial substances from otherwise legal hemp products.”

Rankin said the Legislature’s inclusion of the words “post-decarboxylation” in the statute allows hemp business owners to continue producing CBD products in Wyoming from hemp via this method. He also said the inclusion of the term “psychoactive substance” at the end of the statute’s definition “creates a limiting clause.”

But Platte Hemp owner Sam Watt, one of the plaintiffs in the lawsuit, disagreed with the federal judge.

“The state officials are using synthetic in a way that I don’t understand,” Watt said. “Half the things that you buy at the grocery store are synthetic.”

Flint told the WTE on Monday that Rankin’s clarification of “synthetic” in the bill was a step in the right direction, but “it’s still pretty sticky in its translation.”

“‘Manmade’ can also be described as ‘lab made,’ and even CBD products are lab made,” Flint said. “There still is the structural isomer that they’re banning. That’s a part of all cannabis products. So, to me, it just seems like a big case of Wyoming (lawmakers) gaslighting the state.”

Next steps 

Flint told the WTE that the community of stakeholders in the lawsuit will decide by Friday whether they will appeal the judge’s decision. By denying both the injunction and the restraining order, Flint said the federal judge didn’t give plaintiffs opportunity “to discuss the constitutionality of the bill.” 

“The hearing that we attended was only for the restraining order, to put a stay on the law until we got a chance to talk about it in court,” Flint said. “And by denying the restraining order and the injunction, it denied our opportunity to be able to explain exactly how this bill is an infringement upon federal law.”