On March 24, 2025, the Arizona Attorney General, Kris Mays, issued an open letter to the state’s County Attorneys, Sheriffs, and Chiefs of Police stating:
“On April 24, 2025, the AGO will begin enforcing civil and criminal penalties against unlicensed businesses that continue to sell any THC-infused edible products.“
In support of this enforcement action, AG Mays claims that, “the unlicensed sale of any THC-infused edible product is illegal under Arizona law.” (emphasis added) By “unlicensed” she is referring to businesses that are not licensed as “marijuana establishments” under the Smart and Safe Arizona Act (Proposition 207), the state’s adult-use marijuana law, enacted in 2020.
Since the 2018 Farm Bill was enacted, it has become a common practice for law enforcement agencies to make bold proclamations like this. Unfortunately, they are often based on contorted interpretations of the law. Occasionally, these proclamations are even totally inaccurate based on the actual law. (See, for instance, the incorrect statement made by Greenville, SC, prosecutor Wilkins last February, “At the end of the day, if it gets you high, it’s illegal in South Carolina. Bottom line.”)
In light of the above, where do AG Mays’ claims fit in with the current law in Arizona?
On the one hand, they seem to be flatly incorrect, since the state’s definition of “industrial hemp” is broad and does not include AG Mays’ limitations: ““Industrial hemp” means 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.” (emphasis added) Based on this definition, hemp that contains delta-9 THC concentrations not exceeding 0.3% by dry weight is lawful in the state.
On the other hand, the state defines “hemp products” in the same statutory section more narrowly: ““Hemp products” means 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. Hemp products excludes any product made to be ingested except food made from sterile hemp seed or hemp seed oil.” (emphasis added) Based on this definition, a “hemp product” does not include a food, except food made from sterile hemp seed or hemp seed oil. This seems to preclude hemp edibles, although maybe not. The statute simply defines “hemp product”. It does not clarify the legal status of hemp products that do not fall into the “hemp product” category.
In support of her position, AG Mays references AGO Opinion No. I24-005 regarding delta-8 THC, issued by her office on March 11, 2024. In that Opinion, AG Mays concludes that, “Irrespective of delta-8’s arguable federal legality under the 2018 Agriculture Improvement Act (“Farm Bill”), 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 locales.” Specifically, in last month’s letter she claims that “Even if such products are legal under the Farm Bill of 2018, federal law does preempt Arizona’s more stringent State laws. See Virginia Hemp & Agric., LLC v. Virginia, 125 F.4th 472, 495 (4th Cir. 2025).” (I discuss this Virginia case in an article you can read here.)
This is where things get tricky. As AG Mays states, the 4th Circuit Court of Appeals has, indeed, ruled that states may enact hemp laws that are more stringent than federal law. However, that misses a crucial point. The US District Court for the Eastern District of Arkansas ruled in 2023 that a state may not change the definition of “hemp”: “Under the 2018 Farm Bill, Arkansas can regulate hemp production and even ban it outright if it is so inclined. The legislature seems to have tried to keep the parts of the program it likes (purely industrial uses) and eliminate the parts it doesn’t (human consumption). That may very well be an acceptable distinction as it applies to the state’s criminal code, but changing definitions in a federal program, which it has already fully joined, is not a constitutionally valid way to do it.” (emphasis added) This is a critical issue, especially since AG Mays references the fact that Arizona’s definition of “industrial hemp” differs from the federal definition. Arizona joined the federal hemp program in 2021. Using the analysis from the Arkansas district court, Arizona’s definition of “industrial hemp” may not be enforceable.
Given the above, Arizona’s hemp industry faces some difficult choices. Does it comply with AG Mays’ letter, ignore the letter, or does it challenge the prohibition in court? There is not an obvious path. Complying will cost the state’s hemp industry millions of dollars in lost revenues. Failing to comply could result in criminal and civil penalties. Challenging the prohibition in court will cost significant resources and the end result is uncertain given that the law is not well-written.
The best path is probably for the state’s hemp industry to focus on getting good legislation enacted. Amid a thicket of bad hemp bills, SB 1702 has emerged as an opportunity to fix things. It is supported by the hemp industry and provides a good initial step towards a more progressive (and clear) approach to regulating hemp products. Arizona hemp advocates should contact their representatives and support a more progressive hemp law.
https://cannabislaw.report/arizona-attorney-general-cracks-down-on-hemp-products/
