A Fulton County Superior Court judge on Friday granted a restraining order that prevents Gwinnett County District Attorney Patsy Austin-Gatson from continuing to enforce her ban on some cannabis extracts for 30 days in a case that has the potential to set a statewide precedent on cannabis-related products.
“I have concerns that this may or may not be a rogue DA,” Judge Craig Schwall said. “I think there may be some prosecutorial priorities misplaced.”
Delta-8 and delta-10 THC, cannabis extracts usually derived from hemp, have grown increasingly popular since the 2018 Farm Bill legalized hemp nationwide. The chemicals are similar to the main intoxicating ingredient in marijuana but cause milder highs. They are typically sold in vape cartridges, tinctures, gummies and other edibles.
But states across the country are wrangling with the substances’ murky legality. The lawsuit filed last week by owners of two Gwinnett County vape stores to halt the ban could result in some clarity in Georgia.
Austin-Gatson, who took office last year, said in a January press release that possessing, selling or distributing the substances are felony offenses. She subsequently directed a law enforcement task force to raid at least two distributors, seizing inventory worth millions and hundreds of thousands in cash, said attorneys for Pate, Johnson & Church, the firm representing the businesses in criminal proceedings. At least one person is facing felony marijuana charges, attorney Tom Church said.
The firm is also representing the owners of other Gwinnett vape shops that were not raided. They sued Austin-Gatson and the state of Georgia, seeking a declaration that hemp-derived delta-8 and delta-10 are legal in the state, and requested the injunction against further raids or penalties for selling or possessing hemp products. The lawsuit also seeks to declare that other cannabinoids derived from hemp, including cannabidiol (CBD), cannabinol (CBN) and cannabigerol (CBG), are legal in Georgia.
The case to determine the substances’ legality will proceed while the injunction is in place.
After Austin-Gatson’s warning, Bloom Smoke & Vape and Great Vape, which operate several stores throughout Gwinnett, ceased selling delta-8 and delta-10 products, attorney Page Pate said. As a result, Bloom Smoke & Vape is losing more than 30% of its income and Great Vape is losing more than 60%, according to the lawsuit.
Neighboring counties did not ban delta-8 or delta-10, the lawsuit said.
“There’s a lot of confusion,” Pate said. “Let’s not prosecute people and take all their stuff if there’s a legitimate question that it’s legal.”
The offices of Austin-Gatson and Georgia Attorney General Chris Carr did not return messages seeking comment. They were not represented Friday in court.
Delta-8 and delta-10 products relieve pain and stress without the psychological effects of marijuana, Pate said.
Federal law allows hemp products that contain less than a certain concentration of delta-9 THC, the primary psychoactive ingredient in marijuana. Georgia in 2019 adopted the federal definition of hemp.
But federal and state laws are silent on delta-8 and delta-10, which are similar chemical compounds, spawning opposing interpretations of what is legal.
The store owners’ lawsuit argues cannabinoids such as delta-8 and delta-10 are legal in Georgia as long as they’re made from hemp plants and don’t contain prohibited levels of delta-9. But Austin-Gatson’s news release said delta-8 is illegal because the hemp laws don’t explicitly allow it, as they do low concentrations of delta-9.
Some states prohibit delta-8 and delta-10, while others allow and regulate the substances. Some states, including Texas and Kentucky, are fighting legal battles over delta-8 similar to the Gwinnett case.
The hemp industry has grown rapidly in Georgia and across the nation in the past four years, and hemp-derived products such as oils, creams, vape juices and edibles have proliferated. Hundreds of vendors last year sold CBD products at a hemp convention in the Georgia World Congress Center.
The Gwinnett County Police Department was not involved in raiding any vape shops that sell delta-8, said county spokeswoman Deborah Tuff in a statement.
“GCPD is evaluating the law as it relates to delta-8 to determine what potential future enforcement measures may or may not be required,” Tuff said.
Gwinnett has an ordinance reflecting the state law that possession of an ounce or less of marijuana is a misdemeanor, but Solicitor General Brian Whiteside does not prosecute such cases and county police do not ticket or arrest people with small amounts of the drug. The county commission repeatedly tabled a vote last year to change the ordinance to reflect current practice.
The county commission has not taken a position on delta-8 or delta-10. District 1 Commissioner Kirkland Carden said the state crime lab can’t quantify the substance, test it for purity or determine whether it is naturally derived. Carden said he doesn’t think the issue will become clear without a court ruling or amendment to the statute.
“It is understandable, the confusion of the statute, and it is left to interpretation which side is correct,“ Carden said. “Any time decisions are made in law enforcement, we have to make sure it’s rooted in law and that local businesses fully understand the positions that we take.”
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