Georgia judge stalls DA’s effort to ban cannabis extracts

March 20, 2022 - 05:45 PM

ATLANTA — A Georgia judge has halted efforts by a suburban Atlanta prosecutor to enforce a ban on some cannabis extracts, in a case that could set a statewide precedent.

The Atlanta Journal-Constitution reports that Fulton County Superior Court Judge Craig Schwall on Friday issued a 30-day order restraining Gwinnett County District Attorney Patsy Austin-Gaston from prosecuting people for selling or possessing the extracts.

“I have concerns that this may or may not be a rogue DA,” Schwall said. “I think there may be some prosecutorial priorities misplaced.”

The ruling came in a lawsuit filed by two owners of Gwinnett County vaping stores seeking to have two extracts — delta-8 and delta-10 THC — declared legal in Georgia. 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.

Other states are also wrangling with the substances’ murky legality.

Austin-Gaston said in January that possessing, selling or distributing the substances are felony offenses. She directed raids of at least two distributors, seizing millions in inventory. At least one person is facing felony marijuana charges, attorney Tom Church said.

Church’s firm is also representing owners of other Gwinnett vape shops not raided. They sued Austin-Gaston and the state, asking a judge to declare that hemp-derived delta-8 and delta-10 are legal in Georgia, as well as cannabidiol (CBD), cannabinol (CBN) and cannabigerol (CBG). They also want Schwall to block further raids or penalties for selling or possessing hemp products.

Attorney Page Pate said the store owners stopped selling delta-8 and delta-10 products after the raid, losing substantial sales.

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.”

Austin-Gaston 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 and state law allows hemp products containing less than a certain concentration of delta-9 THC, the primary psychoactive ingredient in marijuana. But laws don’t address delta-8 and delta-10, spawning disputes over what’s 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-Gaston’s news release said delta-8 is illegal because the law doesn’t explicitly allow it, as it does low concentrations of delta-9.

Some states prohibit delta-8 and delta-10, while others allow the substances. Some states, including Texas and Kentucky, are fighting legal battles over delta-8 similar to the Gwinnett case.

The Gwinnett County Police Department wasn’t involved in the raids, said county spokesperson Deborah Tuff, and is trying to decide what to do about delta-8.

Gwinnett County, like the state, considers possession of an ounce or less of marijuana a misdemeanor, but county Solicitor General Brian Whiteside doesn’t prosecute such cases and county police don’t ticket or arrest people with small amounts of marijuana. The county commission repeatedly delayed a vote last year to change county ordinances to reflect current practice.

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