Psychoactive hemp products have never been legal in MD, Appellate Court rules

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The Maryland Appellate Court ruled Tuesday that delta-8 and delta-10 — hemp-derived psychoactive substances similar to cannabis — have never been legal in the state, despite their availability for purchase and a law preventing the sale of them to anyone younger than 21.

Maryland’s second-highest court on Sept. 9 ruled that the state may continue issuing cannabis licenses and may enforce licensing requirements against businesses that sell these products. It also ruled the Maryland Cannabis Reform Act was not an unconstitutional monopoly.

The case, brought by the Maryland Hemp Coalition, is not about the legality of delta-8 and delta-10, which are edible or smokeable products derived from hemp that can get users high. They are illegal in Maryland because the psychoactive element is not produced naturally in high quantities, as THC is in cannabis; instead, it is created synthetically.

They have been available since 2018, when the federal government allowed hemp to be grown for fiber, textiles, oils and other purposes. Psychoactive hemp products are available even in many states that haven’t legalized cannabis, but their legality has been uncertain.

A state law banning the products for people younger than 21 “did not impliedly legalize hemp-derived psychoactive products for people 21 and older,” Appellate Court Judge Dan Friedman wrote in the opinion.

“While this case turns on the State’s ability to enforce the licensing requirement against hemp-derived psychoactive products, the parties have not addressed the legality of these products,” Friedman wrote.

“(These products) are now and have always been illegal in Maryland. That the prohibition has been the subject of lax enforcement does not make it legal.”

Friedman ruled with a three-judge panel of the Appellate Court. Judge Doug Nazarian joined the opinion; judge Terrence Zic joined only in the judgment.

The Maryland Hemp Coalition sued the state in Washington County Circuit Court in 2023, arguing the Maryland Cannabis Reform Act violated the Maryland Constitution because it created a monopoly.

The coalition and its co-plaintiffs won a preliminary injunction, requiring the state not to enforce the licensing requirements. Both parties appealed; the state asked the appellate court to reverse the injunction, while the Maryland Hemp Coalition argued the circuit court should also have enjoined the issuance of licenses.

“We respectfully disagree with the Appellate Court of Maryland’s ruling and are evaluating our options,” said Nevin Young, an Annapolis-based lawyer representing the Maryland Hemp Coalition.

Young said it was “absurd” to say a law preventing the sale of delta-8 and delta-10 to people younger than 21 doesn’t imply that those 21 and older can buy it. He said the Cannabis Reform Act is arbitrary and random, and doesn’t accomplish its stated goal of racial equity.

The Maryland Office of the Attorney General, which defends the state in court, declined to comment.

One of the reasons the appellate court reversed the Washington County Circuit Court’s preliminary injunction was because the lower court made a factual error. It ruled that federal law preempted the Cannabis Reform Act because the state never submitted a hemp regulation plan to the U.S. Department of Agriculture; the state did submit such a plan.

Friedman also wrote that the Maryland Hemp Coalition had not defined the market in which it argued there was a monopoly. The law, he wrote, doesn’t create a monopoly in either the broader cannabis market or in the limited hemp-derived psychoactive products market, because the law meets two exceptions in the Maryland Constitution. He wrote that the law served the public interest and that there was not a “common right” to delta-8 and delta-10 products because they remain illegal at the federal level.

The law, he wrote, is “a prohibition, not a monopoly.”

This story has been updated.