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Georgia vape shops were ordered to pull delta-8 and 10 THC. Now they're suing.



Two Georgia vape shops that stopped selling hemp-derived THC to avoid law enforcement raids are now suing the State of Georgia and a county district attorney.


Both shops pulled products containing delta-8 and delta-10 THC after the Gwinnett County district attorney aimed enforcement efforts at the industry. DA Patsy Austin-Gatson issued a statement Jan. 25, 2022, warning businesses that her office planned to initiate arrests and prosecute the possession or sale of delta-8 and delta-10 THC.


A nearby distribution warehouse was raided Feb. 22, according to area news station CBS46. Officers seized some $2 million in product during the raid. The owners of Element Distribution told CBS46 they thought they were running the business in keeping with state and federal laws, and that they’d been paying taxes to the county on these products.


Delta-8, Delta-10 THC

Delta-8 and delta-10 THC are relatives of the most well-known tetrahydrocannabinol, delta-9 THC. Although delta-8 and 10 occur naturally in cannabis in trace concentrations, the products on shelves today are first extracted as CBD, then chemically converted to THC.


They’ve become popular, especially in places where delta-9 is prohibited, because they’re derived from hemp and legal by the letter of the law.


Hemp-Derived THC in Georgia

According to the 2019 Georgia Hemp Farming Act, hemp-derived isolates and extracts containing no more than 0.3 percent delta-9 THC are legal.


Interpretation of that language has become the subject of debate — and now, a lawsuit.


According to the DA’s office, the fact that isomers like delta-8 and 10 are not named in the act makes them illegal. “The Georgia code specifically exempts ‘delta-9-THC’ under certain concentrations, not delta-8-THC,” the DA wrote in the Jan. 25 warning letter.


But the law firm suing the DA on behalf of retailers thinks differently.


Lawsuit Aims to Stop DA and Law Enforcement

“If you look at the language of the Hemp Bill that Georgia passed, it's very explicit,” Tom Church, an attorney on the case, told 11 ALIVE News. “Hemp and all its extracts, all its derivatives and, critically here, all of its cannabinoids are legal, except using more than 0.3 percent of delta-9 THC."


“If you look at the language of the Hemp Bill that Georgia passed, it's very explicit. Hemp and all its extracts, all its derivatives and, critically here, all of its cannabinoids are legal, except using more than 0.3 percent of delta-9 THC.”

— Tom Church, Georgia Attorney


“And I think, a lot of these business owners we represent are struggling right now,” Church said. “They have to stop selling the stuff over the fear of prosecution.”


The lawsuit puts numbers to that claim. Sales at Bloom Smoke & Vape are down more than 30 percent since the shop stopped selling hemp-derived THC. At Great Vape, which also pulled delta-8 and delta-10 from its shelves, sales are down 60 percent.


The suit alleges: “By publicly announcing that anyone engaged in the possession, purchase, or sale of products containing hemp-derived delta-8-THC or delta-10-THC will be prosecuted for felony marijuana offenses, and by arresting individuals and businesses and seizing their property, the State of Georgia has acted outside of its lawful authority, in violation of Georgia law and Plaintiffs’ right to due process … and has caused significant and immediate injury to Plaintiffs, who have lost, and continue to lose, roughly half of their income.”


Sales at Bloom Smoke & Vape are down more than 30 percent since the shop stopped selling hemp-derived THC. At Great Vape, which also pulled delta-8 and delta-10 from its shelves, sales are down 60 percent.

The plaintiffs have requested that the judge issue an order to stop the DA’s office from threatening or initiating enforcement against the possession, sale or distribution of hemp-derived THC.


It also asks the court to officially declare whether hemp-derived THC is legal in Georgia.


The complaint notes that judges ruled in the hemp industry’s favor in similar cases in Texas and Kentucky.


“Not only did courts in these states agree with arguments made by similarly situated plaintiffs in those states,” the lawyers wrote, “they also recognized the significant and irreparable harm those plaintiffs were facing and enjoined the state from prohibiting delta-8-THC and initiating enforcement actions.”

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