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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowA nearly two-year-old legal battle is over—for now—after a federal judge dismissed a lawsuit over the legality of delta-8 tetrahydrocannabinol, or 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 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.
The Indiana Capital Chronicle is an independent, nonprofit news organization that covers state government, policy and elections.
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Delta 8 is poison. While I am against total marijuana legality, as I think it should be tightly controlled, regulated, and the strength restricted (today’s weed isn’t the weed of the 20th century), this “junk” Delta 8, Delta 9 has 80% of it’s ingredients unregulated – and it causes life-long damage. Go to any youth stress center, or rehab – you will find kids – with the source of their problems as these junk products. This crap is no different that unregulated alcohol – dangerous and potentially life-altering. Adults and “real” weed aren’t my issue – it’s this fake crap that is profoundly dangerous. Shame on the adults in our society for not banning this garbage.
There are wonderful companies like Mako Hemp at the Factory Arts District that sell “real” hemp flower. Check them out!
1 Million percent agree with Jon M.
Young Hoosiers are using the Delta 8 product and going psycho! Call any reliable stress center in Indiana (St. V’s Stress Center – 317-338-4800) and see what they say.
ALSO – call Indy IPD and ask them.
The state legislate must address this issue.
Indiana would be better off with legalizing pure and controlled grown marijuana rather than selling this JUNK (Delta 8) in local gas stations and everywhere else you look!.
Good for Todd R. give a damn!! No one else seems to be concerned about the states youth and the epidemic Delta 8 is causing and that’s sad. I wonder if the youth of China are polluting themselves with this crap? Bet not!!
You lost me at “call any stress center.” If you have specific examples of harm being done, and that harm being a direct result of a specific ingredient in these products, then please share.
The hysterics (including the comments here) surrounding any legalization conversation only detract from the debate.
Informed and reasonable adults must obviously be allowed to choose to do things that are not necessarily healthy, and the State has no obligation or power to prohibit any substance without proper laws saying so.
All theoretical or actual harms to individuals can be prosecuted within the existing tort, civil, or criminal systems, but nobody ever talks about that.
I’ve been using delta-8 pretty regularly for the past three years and feel great, but will be sure to be on the lookout for those life-altering effects. I’m still waiting for the ones I was assured I’d get from my decades of delta-9 use, frankly. I don’t think anyone is saying it should be allowed for kids. If we’re going to all-out ban it, I think the same should be done for alcohol and cigarettes, as I don’t think there’s any question that those two products destroy wayyyy more lives.
We don’t want to ban cigs and alcohol, but you are correct on the marijuana side, and kids should not be doing any of the three. Delta 8 is a joke and only available as a way to get around the current Indiana law. Legalizing marijuana not only removes most of the bad artificial substances, but also drastically reduces the black market and illegal sales, while increasing the tax base and allowing an entire business and industry to grow in Indiana. Of course our leadership has waited so long, the national pot companies will control our local industry, which is the biggest fallacy of the current prohibition.
LETS GOOO KEVIN P!!! Spot on!!!