Missouri Hemp Trade Association Suing State Over Governor’s Intoxicating Product Ban

The Missouri Hemp Trade Association filed a lawsuit on Aug. 30 to stop the state’s Department of Health and Senior Services (DHSS) from carrying out an executive order to ban intoxicating products containing hemp-derived cannabinoids.

The lawsuit, filed in the Cole County Circuit Court, seeks an injunction to prevent the DHSS from moving forward on designating foods and beverages “adulterated” because they contain hemp derivatives and from embargoing such products.

The lawsuit stems from Gov. Mike Parson’s Aug. 1 executive order to prohibit the sale of edible products containing intoxicating hemp derivatives—such as delta-8 THC—unless they originate from an “approved source.”  The order directs the DHSS to implement steps to embargo and condemn these products, which DHSS officials announced Aug. 29 they plan to carry out.

The Missouri Hemp Trade Association (MO Hemp Trade) filed its lawsuit the day after the DHSS press release, claiming Missouri law prohibits the intended actions announced by the DHSS.

“This memo really crystallizes the issue and really makes clear what they’re intending to do,” MO Hemp Trade attorney Chuck Hatfield told the Missouri Independent. “And I think what they’re intending to do is illegal.”

The governor’s order does not impact products sold within Missouri’s licensed and regulated cannabis market.

Still, Parson’s order intends to achieve what many state leaders throughout the nation are trying to accomplish: to address consumer concerns about the proliferation of unregulated and intoxicating products that often don’t meet the packaging, age-restriction and testing standards of the licensed cannabis market.

“We have seen the negative impacts of unregulated psychoactive cannabis products firsthand,” DHSS Director Paula F. Nickelson said Aug. 29 in a press release. “Numerous Missourians have been adversely affected by consuming foods laced with these products. Disturbingly, children in Missouri and across the nation have been hospitalized after ingesting these substances, and this is unacceptable.”

RELATED: Missouri to Start Enforcement of Intoxicating Cannabinoids Sept. 1, Despite Executive Feud

The MO Hemp Trade lawsuit also seeks declaratory relief, asking the court to declare that the “DHSS has improperly enacted a rule prohibiting the manufacture, sale or distribution of foods containing hemp products unless done so by facilities licensed by DHSS without undertaking the rulemaking process required by the Missouri Administrative Procedure.”

In response to the executive order, DHSS officials listed more than a dozen compounds—including delta-8, -9, -10 and -11 THC, HHC, THCa and THCO—from the cannabis sativa L. plant (both cannabis and hemp) that would be included in the governor’s ban.

Edible products that have any traceable amounts of these compounds—even if they contain less than 0.3% THC, the federal threshold that legally defines hemp—will be prohibited from being sold outside the state’s licensed cannabis market under Parson’s order, according to the DHSS.

MO Hemp Trade considers this ban a significant threat to its members’ livelihoods and the Missouri hemp industry at large.

“Members of MO Hemp are suffering an immediate and threatened injury as a result of DHSS plan to embargo and condemn foods containing hemp products starting September 1, 2024,” the lawsuit states. “They are being threatened with the prospect of an embargo, and related litigation, for selling products that contain industrial hemp.”

The MO Hemp Trade Association requests three counts of relief in the lawsuit, including declarations that:

1. Foods containing industrial hemp products are not adulterated;
2. The DHSS cannot embargo foods containing industrial hemp products; and
3. The DHSS cannot unilaterally stop the manufacture, sale or delivery of foods containing industrial hemp products without promulgating a rule.
   

The lawsuit claims these requests for declaratory relief do not require information from any particular member.

Parson’s executive order also aims to authorize the Missouri Division of Alcohol and Tobacco Control (ATC) to take disciplinary action against any licensed liquor establishment selling intoxicating hemp or cannabis products as an enforcement mechanism.

However, the governor’s plan received pushback from his state secretary, Jay Ashcroft, who twice rejected emergency rules the ATC submitted to the state’s Department of Public Safety in late August. By Ashcroft refusing to sign off on the emergency rules, the ATC may only submit proposed rules that now must go through a formal rulemaking process that could delay the governor’s order by at least six months.

RELATED: Missouri Governor Urges State Secretary to Reconsider Emergency Rules to Ban Intoxicating Hemp Products

The MO Hemp Trade lawsuit does not mention the ATC or liquor establishments. However, MO Hemp Trade publicly opposes regulations limiting the use of cannabinoids derived from hemp and urges the DHSS to develop balanced guidelines that support regulatory compliance and industry growth, according to its website.

“Governor Mike Parson’s executive order prohibits businesses with liquor licenses from selling unregulated psychoactive cannabis products, including foods with psychoactive cannabis compounds from unapproved sources, posing a significant threat to the Missouri hemp industry’s growth and legality by endangering stakeholders’ livelihoods and restricting access to essential health and wellness products for customers,” according to MO Hemp Trade.