“That the Plaintiffs have hung their hats on challenging the Official Opinion in federal court is their own cross to bear.”
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.
Judge James R. Sweeney II, of the U.S. District Court for Indiana’s Southern District, wrote the suit is “fundamentally” a “question for consideration by Indiana’s courts.”
Delta-8 is an isomer of delta-9 THC, the active ingredient in marijuana.
Plaintiffs 3Chi, Midwest Hemp Council and Wall’s Organics filed suit in 2023, several months after an opinion from Indiana Attorney General Todd Rokita (R) found the products are illegal.
The opinion was a direct response to a request by now-former Indiana State Police Superintendent Doug Carter and the Indiana Prosecuting Attorneys Council. Local law enforcement agencies took note, with some notifying retailers they could get in trouble or even raiding retailers, according to the complaint.
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. They also sought an injunction.
The judge determined the plaintiffs had standing to sue. But in an order filed Tuesday, Sweeney found they “have not met their burden of demonstrating that their alleged injury is redressable by the Court.”
The “problem,” Sweeney wrote, is that Rokita’s opinion isn’t binding and isn’t law.
“Plaintiffs do not seek a declaration of their rights under federal law, given that no dispute over the Farm Bill is at issue; rather, they ask the Court to find that the Official Opinion is preempted by federal law,” the judge continued. “But, as the Court has explained, an opinion is not state law, so it cannot, by definition, 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.
And, with the prosecutor and law enforcement officer defendants already dismissed from the lawsuit, Rokita was the only defendant remaining. The judge wrote that plaintiffs “have produced no evidence to demonstrate that [Rokita] bears any responsibility for initiating prosecutions, making arrests, or enacting criminal legislation,” so an injunction wouldn’t do anything.
“That the Plaintiffs have hung their hats on challenging the Official Opinion in federal court is their own cross to bear,” he concluded. “But fundamentally, this is a dispute about the proper interpretation of state law, which…is a question for consideration by Indiana’s courts.”
He dismissed the case without prejudice, so the plaintiffs could choose to re-file in state court.
Lawmakers, meanwhile, haven’t coalesced to clarify whether the products are legal or not. 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.
This story was first published by Indiana Capital Chronicle.
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