On April 15, 2022 a Fulton County Superior Court judge issued an injunction against the Gwinnett County District Attorney (DA) Patsy Austin-Gatson, preventing her office from taking any criminal or civil enforcement action relating to the possession or sale of delta-8 THC or other hemp-derived cannabinoids.  The Gwinnett County DA had previously announced that her office would be cracking down on “the possession, sale or distribution” of delta-8, which she considered to be a controlled substance in Georgia.  According to the order issued by the court, more than $2 million in assets had already been seized pursuant to the efforts by DA Austin-Gatson’s office.

Two stores that sell delta-8 in Gwinnett County filed a lawsuit last month arguing that delta-8 was legal in Georgia and asking the court to step in and halt the raids leading to seizure of delta-8 products and related assets.  The stores succeeded in obtaining a temporary restraining order against DA Austin-Gatson on March 18, 2022, shortly after filing the lawsuit, but the order was set to expire after 30 days on April 17.  This more recent order granting the injunction will last until the lawsuit concludes.

Although the injunction applies specifically to DA Austin-Gatson alone, as opposed to all District Attorneys in the state, the injunction ostensibly means that sales of delta-8 in Georgia can continue unabated for the time being.  

The legality of delta-8, a naturally occurring substance in the cannabis plant, has long been debated.  Unlike its cousin delta-9 THC (the active ingredient in marijuana), delta-8 comes from hemp or, more specifically, hemp-derived cannabidiol.  In significant enough concentrations, delta-8 can give someone a “high” arguably similar to marijuana, hence the controversy.

Last September, the U.S. Drug Enforcement Administration (DEA) provided guidance on the legality of delta-8, explaining that cannabinoids such as delta-8, which is derived from hemp and does not contain more than the federal limit of delta-9 THC (0.3%), are legal under federal law.  Whether delta-8 will continue to be considered legal under Georgia law remains to be seen and could be decided by this ongoing litigation.

The attorneys at Chilivis Grubman are actively representing retail clients on this issue.  If you need assistance, please contact us today.