A federal magistrate judge has ruled that the state of Alaska did not violate the U.S. Constitution when it acted to limit intoxicating hemp products in 2023.
In an order published May 23, Magistrate Judge Kyle Reardon granted summary judgment in favor of the state and against the Alaska Industrial Hemp Association, which sued two years ago in an attempt to overturn regulations imposed by the Alaska Department of Natural Resources.
The court order means intoxicating hemp products, common in many other states, will remain illegal in Alaska unless sold through a licensed marijuana retailer.
“It was rewarding to be part of the process developing the regulations, and I was happy when we successfully defended against the motion for a preliminary injunction in 2023,” said Assistant Attorney General Kevin Higgins, by email. Higgins represented the state in the case.
“I’m not patting myself on the back too hard though,” he said. “The Division of Agriculture was motivated by public safety concerns when it took measured action to regulate an emerging industry. This was an easy case to make, which is probably why the plaintiffs didn’t file an opposition to the motion for summary judgment.”
An attorney representing the plaintiff did not answer a request for comment on Wednesday.
Alaska legalized the sale and use of marijuana for recreational purposes in 2014. The state subsequently created a tightly regulated market in which only licensed businesses may grow, process and sell marijuana.
Under a 2018 federal law and a state law enacted in 2021, cannabis plants that contain less than 0.3% THC — a common psychoactive chemical — were considered hemp, not the more tightly regulated marijuana.
Even though those hemp products contain only small amounts of psychoactive chemicals, they could be extracted, processed and turned into intoxicating products that were available at convenience stores, gas stations and other stores not restricted by the state’s marijuana regulator.
While hemp products are federally legal, marijuana remains federally prohibited, and social media companies frequently restrict marijuana advertising, giving an advantage to the hemp market.
Marijuana retailers urged action, and a task force organized by Gov. Mike Dunleavy recommended that the state enact regulations to limit intoxicating hemp products.
The Alaska Division of Agriculture enacted those in 2023, leading to the lawsuit that was resolved this month.
Plaintiffs had argued that the division’s regulations violate the constitution’s supremacy clause, violate the dormant commerce clause, constitute a regulatory taking and are void for vagueness.
In each case, Reardon ruled against the plaintiffs and in favor of the state.
Early in the legal dispute, U.S. District Court Judge Sharon Gleason rejected a request for a preliminary injunction, allowing the state to enforce its regulations as the case progressed.
Already this year, enforcement officers from the Division of Agriculture and Alaska Alcohol and Marijuana Control Office have seized products from three businesses in Anchorage and one in Fairbanks.
Trevor Haynes, president of the Alaska Marijuana Industry Association and manager of a Fairbanks marijuana business, said that while the association has issues with the way the state is regulating hemp, it’s good that the state’s regulations for intoxicating hemp products were preserved in court.
“That is one way to stop the development of a gray area where people will … basically sell marijuana under the guise of hemp,” he said.
He was critical of the state’s decision to require hemp retailers to sell products that contain absolutely no psychoactive substances. Removing all traces requires costly, specialized equipment and generally isn’t economically feasible for small-scale Alaska businesses.
“I have a business that’s purely a hemp business and so I understand it from both sides. It’s unfortunate, and there might be a better solution, but (the regulations are) certainly a way to ensure that there’s no gray area where intoxicating hemp, aka marijuana under another name, can be produced in the state and sold in the state.”
Correction: The initial version of this article misstated the name of the federal judge who rejected the request for a preliminary injunction. It was Judge Sharon Gleason.