A South Florida seller of hemp-derived products is suing the Florida Department of Agriculture and Consumer Services (FDACS) for blocking sales to consumers outside the state.
The plaintiff says the Department is violating the U.S. Constitution and misapplying a recent update to state law barring Florida sales of cannabis products in kid-attractive packaging.
Agriculture Commissioner Wilton Simpson’s response: “Bring it on.”
As first reported by the South Florida Sun-Sentinel, a Fort Lauderdale-based seller of hemp-extract products called Just Brands LLC, operating as “Just CBD,” filed suit against the state agency in U.S. District Court after its agents issued stop-sale orders against the company.
Agents “barged into Just Brands’ office” on Oct. 31, the lawsuit said, and issued nine orders prohibiting the company from “holding” or “storing” hemp-extract products in Florida.
Just Products alleges FDACS is blocking the company from selling its goods to consumers in other states with laxer laws. That, it says, an overstep of new restrictions on hemp-extract product sales that recently went into effect.
The company says the restrictions also run afoul of protections under the Constitution’s Commerce Clause, which grants Congress broad powers to regulate interstate commerce and restricts states from enacting laws that impose undue burdens or discrimination on it.
An FDACS spokesperson told Florida Politics that, as was the case with a Daytona Beach-based business flagged last week for similar violations, the products in question being sold by Just Products are “attractive and/or marketed to children.” The “stop sale order” provides that those products must either be destroyed or returned to the manufacturer.
The company’s suit seeks to prevent that from happening and accuses FDACS of using a “lack of guidance” in the law “to advance a politically motivated vendetta” against Just Products and other similar companies.
“The Department only has the power to regulate matters within the state of Florida which does not stifle interstate commerce,” Just Products’ lawyer, Alex Tirado-Luciano, told the Sun-Sentinel on Sunday. “They are not the federal government.”
Simpson fired back with a statement Monday.
“To this plaintiff, who wants to fight our department’s efforts to keep children safe — bring it on,” he said.
“As Florida’s Commissioner of Agriculture, one of my top responsibilities is ensuring the safety of our food and protecting Florida’s consumers. Prior to the changes made to Florida law last year, hemp extract products were out of control and sold without restrictions, including to children and with marketing and packaging specifically targeting them.”
Simpson added that the state’s prior lack of restrictions on hemp-extract products led to nearly 1,000 children in Florida being exposed last year to high-potency tetrahydrocannabinol (THC), the ingredient responsible for producing the euphoric “high” from cannabis use, and had to seek help from poison information centers.
“We worked with the Legislature to create much-needed, common-sense, and industry-supported guardrails around these products,” he said.
Lawmakers in June unanimously approved new restrictions, effective July 1, banning sales in Florida of hemp-extract products that are “attractive to children.” That includes those sold in flashy, candy-like containers and edibles made with food coloring and that look like humans, cartoons, animals and other shapes resembling existing candy products.
The Just CBD website shows its products — which mostly contain cannabidiol (CBD), a largely non-psychoactive cannabis extract — packaged in unflashy containers.
However, dozens of the products are indistinguishable from non-cannabis-containing gummy bears, worms, cherries, fruit rings, rainbow ribbons and other sweets sold in candy aisles everywhere.
Some of the products also contain a low level (up to 0.3%) of THC.
Marijuana-derived products are still largely banned in Florida, with exceptions for people who obtain medical use permits. But a legal loophole in a 2018 federal law allowing the growth of hemp and removing the plant from the Drug Enforcement Agency’s list of controlled substances has led to an explosion in legal products high in THC across the country.
Hemp and marijuana are two varieties of the cannabis plant. Marijuana contains a comparatively high concentration of delta-9 THC, and in states where the drug is legal that is typically the go-to strain sold.
In states where recreational use remains outlawed, like Florida, retailers sell alternate products with delta-8, delta-10 and delta-0 THC, which are strains cultivated from the hemp plant to specifically induce the same “high” traditional THC provides.
To enforce the changes to Florida’s hemp-extract law, FDACS conducted “the largest ever inspection sweep of businesses selling products that contain hemp extracts in July and August,” a Department press note said. That included examinations of more than 700 businesses across all 67 Florida counties and resulted in the discovery of 83,000 packages of hemp-extract products that wouldn’t look out of place in a candy aisle.
Altogether, FDACS has found more than 107,400 such packages since the law went into effect July 1.