Judge rejects challenge to Iowa hemp law

DES MOINES — A federal judge on Friday denied a request from a pair of THC beverage manufacturers to restrict enforcement of a new Iowa law regulating consumable hemp products, but she raised questions about the lack of clarity in the law.

Judge Stephanie Rose said in a ruling Friday that she had serious concerns about the vagueness of the law, but that those concerns were not raised by the plaintiffs, who failed to prove their case that it is preempted by federal law.

The law, which state lawmakers passed this year and is set to take effect Monday, limits the amount of THC — the main intoxicating compound in cannabis — that can be in “consumable hemp” products that are legal under federal law. A product cannot have more than 4 milligrams per serving and 10 milligrams per container, and it must include a warning label.

What’s a ‘serving’?

One issue during the hearing was the definition “serving,” which is not spelled out in the law. Manufacturers had believed they could change the labeling on their 12- ounce cans to include more than one serving, allowing them to sell cans containing up to 10 milligrams of THC.

But in proposed draft rules and a guidance document, the state health department has said that a 12-ounce can will be considered one “serving,” and the can cannot contain more than one serving. The interpretation would disqualify more than 80 percent of the companies’ beverages, company representatives have said.

Rather than argue that the law was too vague, though, Climbing Kites and Field Day Brewing, two Iowa-based manufacturers of THC-infused beverages, argued the state law is preempted by federal law, which dictates packaging and label requirements for food.

They also argued the draft rules proposed by the Iowa Department of Health and Human Services to regulate packaging exceed the agency’s authority. The companies asked the federal court to block both the potency limits and the packaging rules in the law from taking effect.

“During the course of the hearing, the Court expressed serious concerns whether HF 2605 was unconstitutionally vague based on a provision of the law limiting the potency of THC permissible in a single serving of a product,” Rose wrote in her ruling. “Because the statute does not define a serving, it is unclear how this provision would be enforced. This potentially raises due process concerns surrounding a statute with potential criminal penalties.”

Rose also raised her concerns about the vagueness of the law during the hearing, calling the law an “island floating without the necessary definitions to be enforceable.”

Despite her concerns, Rose said those same arguments were not brought up by Climbing Kites and Field Day Brewing in their lawsuit.

She ruled against their argument that the law was preempted by federal law, denying the request for an injunction.

Rose’s ruling left open the possibility of further proceedings over the renewed complaint filed by the plaintiffs, and she said a more extensive discussion of the court’s analysis would soon be filed.

To be continued

During the hearing, Will Admussen, an assistant solicitor general with the Iowa Attorney General’s Office, rebuffed Climbing Kites’ claims that the state does not have authority to add warning labels and set serving size standards.

Other courts, including in Alaska, have ruled that states have authority to regulate consumable hemp products, the state wrote in their reply to the lawsuit.

The companies filed an amended complaint on Friday that included arguments that the law was overly vague and violated the due process clause of the U.S. Constitution.

The law “does not define, explain, or otherwise shed any light on what constitutes a 'serving' of total THC in a consumable hemp product,” Michael Reck, a lawyer for the companies, wrote in the new brief.

Scott Selix, the co-founder of Climbing Kites, declined to answer questions after the Friday hearing and did not respond to a following request for comment.

The ruling means Iowa’s law is all but certain to take effect Monday.

But more challenges to the law remain, and Rose said arguments about the law’s vagueness could be further developed.

Another lawsuit, brought by Several CBD and hemp retailers in the state, challenges the law on several grounds, including that it violates due process by being overly vague and that it violates interstate commerce protections.

A July 11 hearing is set for that challenge.

Comments: cmccullough@qctimes.com