The radiant Arizona sun may soon be setting for unlicensed
consumable hemp product retailers who have benefitted from sporadic
and inconsistent enforcement. Indeed, a recent letter from Arizona Attorney General
Kris Mayes reflects a sharp escalation from the state's top law
enforcement official in stating, unequivocally, that retail sales
of THC-infused beverages or edible products without a valid
marijuana establishment license from the Department of Health
Services are illegal. The letter, issued on March 24, 2025, cites
to AGO Opinion No. I24-005 ("AGO
Opinion") as prohibiting "the sale of delta-8 THC
products and other hemp-synthesized intoxicants—whether
currently existing or developed in the future—to include
Delta-9 THC and similar derivatives."
The AGO Opinion, published on March 11, 2024, cited multiple
Arizona laws to support the conclusion that sales of these types of
products are illegal in Arizona, notwithstanding the fact that
Arizona has legal medical and adult-use cannabis markets. The cited
laws include A.R.S. § 3-311(7), which defines "industrial
hemp" to mean "the plant cannabis sativa L. and any part
of such a plant, whether growing or not, with a delta-9
tetrahydrocannabinol concentration of not more than three-tenths
percent on a dry-weight basis." In contrast to the federal
definition of hemp, this definition does
not include "derivatives, extracts,
cannabinoids, isomers, acids, salts, and salts of
isomers."
The AGO Opinion also cited A.R.S. § 3-311(5), which defines
"hemp products" as "all products made from
industrial hemp, including cloth, cordage, fiber, fuel, grain,
paint, paper, construction materials, plastics and by-products
derived from sterile hemp seed or hemp seed oil." Applying
these laws, the AGO Opinion concluded that all hemp products in
Arizona must be "uniformly industrial and nonintoxicating in
nature" and, therefore, that "Arizona continues to define
and regulate 'industrial hemp' in a manner that precludes
the sale of hemp-synthesized intoxicants in convenience stores,
smoke shops, and other unlicensed [locations]."
The Attorney General's letter also summarily dismissed the
notion that Arizona's prohibitions on consumable hemp products
might be preempted by the 2018 Farm Bill. Citing the recent
decision from the 4th Circuit in Northern Virginia Hemp and
Agriculture LLC v. Commonwealth of Virginia (discussed in more
detail here), the letter confirms that the Farm Bill
"does not preempt any Arizona law that outlaws these
products." According to the letter, beginning on April 24,
2025, the Attorney General's Office will take enforcement
action against unlicensed businesses that continue selling
THC-infused edible products that claim to comply with the 2018 Farm
Bill. The letter adds that other Arizona law enforcement agencies
and prosecutorial offices may also pursue legal action. Consumable
hemp product retailers in Arizona should heed these enforcement
warnings given that the 1-month grace period outlined in the letter
is expected to expire in roughly two weeks.
But the consumable hemp product market in Arizona is not
necessarily doomed to the dark ages. To the contrary, the Arizona
legislature has been active in pushing for a regulated consumable
hemp product market. As an example, the Arizona Senate's
passing of Senate Bill 1556 in the beginning of March
provided a measure of hope to consumable hemp product retailers in
the state. The bill, which now sits in the House Commerce
Committee, would create a regulatory framework for the legal
production and sale of hemp beverages.
Specifically, it would create a licensing regime and impose rules
for hemp beverage manufacturing, testing (including testing for
potency, pesticides, microbials, residual solvents, and heavy
metals), packaging and labeling, serving sizes and containers,
delivery and sampling, and retail sales. In addition, it would
prohibit any person from processing, distributing, selling or
offering for sale in Arizona any:
- adult hemp beverage products without a license;
- adult hemp beverage products in powdered form or as a concentrated tincture for mixing with water or other liquids; or
- spirituous liquor containing any adult hemp beverages or cannabinoid.
It would also apply Arizona statutes governing the unlawful act
of providing liquor to a person under 21 years of age to the
providing of adult hemp beverages to a person under 21 years of
age. Finally, amendments to the bill would limit single serving
hemp beverage containers to 10 milligrams of total THC per
container for sale in off-premises licensed establishments and 5
milligrams of total THC per container for sale in on-premises
licensed establishments.
To be sure, the situation on the ground in Arizona with respect to
consumable hemp beverages is dynamic and we are monitoring
enforcement updates and legislative activity in real time.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
