No § 1983 Preemption Right Under the 2018 Farm Bill; Tenth Circuit Upholds Wyoming’s Delta‑8/Synthetic Hemp Restrictions Against Dormant Commerce, Takings, and Vagueness Challenges

Introduction

In Green Room LLC v. State of Wyoming (10th Cir. Oct. 27, 2025), the Tenth Circuit affirmed dismissal of a pre‑enforcement challenge brought by hemp businesses against Wyoming’s Senate Enrolled Act 24 (SEA 24). SEA 24 narrows the state definition of “hemp” to exclude synthetic substances, expands “THC” to include delta‑8 and other psychoactive isomers, aggregates total THC at the 0.3% threshold, and places both naturally occurring and synthetic delta‑8 THC on Wyoming’s Schedule I. The plaintiffs alleged federal preemption under the 2018 Farm Bill, a Dormant Commerce Clause violation, an uncompensated regulatory taking, and unconstitutional vagueness; they also appealed the denial of preliminary injunctive relief.

Judge Harris L Hartz, writing for a unanimous panel (Hartz, McHugh, Moritz), held that:

The plaintiffs cannot pursue a preemption claim under 42 U.S.C. § 1983 because the 2018 Farm Bill does not unambiguously confer enforceable private rights (Gonzaga standard), and the Supremacy Clause is not itself a font of rights (Armstrong).
On the Dormant Commerce Clause, the complaint does not plausibly allege facial discrimination or a Pike balancing violation; and preemption concerns tied to “transportation through” the state are premature and not clearly alleged.
Regulation of commercial personal property (hemp-derived products) is not an unconstitutional regulatory taking in these circumstances; longstanding police-power precedent (including the Prohibition-era line) forecloses such claims.
The term “psychoactive” in SEA 24 is not unconstitutionally vague, and the State has disclaimed banning non-psychoactive CBD.
The appeal from the denial of preliminary relief is moot after merits dismissal.

Although bound by prior circuit law that restricts preemption suits in equity, the panel flagged its “discomfort” with that precedent in a substantial discussion of Armstrong v. Exceptional Child Center. It observed that many sister circuits recognize a freestanding equitable cause of action to enjoin preempted state laws even without an enforceable private right—an important signal for future cases and potential en banc review in the Tenth Circuit.

Summary of the Opinion

Preemption (Section 1983): Dismissed. The 2018 Farm Bill (7 U.S.C. §§ 1639o–1639s) does not unambiguously confer private rights; the Supremacy Clause provides no cause of action. Tenth Circuit precedent (Safe Streets Alliance) also limits freestanding equitable preemption actions, and plaintiffs did not preserve such a claim.
Dormant Commerce Clause: Dismissed. SEA 24 is not discriminatory on its face or in effect; plaintiffs alleged no plausible Pike burden clearly excessive relative to Wyoming’s health and safety interests. Allegations regarding interstate shipments “through” Wyoming were not clearly pled, and state-court narrowing constructions should be awaited.
Regulatory Taking: Dismissed. Changes to the permissible commercial uses of personal property do not constitute a compensable regulatory taking here. The Court relied on Lucas, Mugler, Ruppert, and James Everard’s Breweries, along with Holliday Amusement, emphasizing the State’s police power over highly regulated, contentious commodities.
Vagueness: Dismissed. SEA 24’s use of “psychoactive” provides fair notice, is anchored by common meaning and statutory cross-references, and does not invite arbitrary enforcement. CBD is not banned, as the State conceded.
Preliminary Injunction Appeal: Dismissed as moot after final judgment of dismissal.

Background and Statutory Context

The 2018 Farm Bill

The Agricultural Improvement Act of 2018 (the “2018 Farm Bill”) removed “hemp” from Schedule I of the Controlled Substances Act by defining it as Cannabis sativa L. and derivatives with no more than 0.3% delta‑9 THC on a dry-weight basis, and created a structure for USDA-approved state plans to regulate the production of hemp. Two provisions frame the federal–state relationship:

Antipreemption clause (7 U.S.C. § 1639p(a)(3)(A)): “Nothing in this subsection preempts or limits any law of a State … that (i) regulates the production of hemp; and (ii) is more stringent than this subchapter.”
Transportation-through clause (7 U.S.C. § 1639o note): Prohibits states from banning interstate transportation or shipment of hemp or hemp products produced in accordance with the Farm Bill “through” a state.

The Tenth Circuit has already held the transportation-through clause does not create a private right of action enforceable via § 1983. See Serna v. Denver Police Department, 58 F.4th 1167 (10th Cir. 2023).

Wyoming’s SEA 24 (2024)

SEA 24 (codified in relevant part at Wyo. Stat. Ann. §§ 11‑51‑101 et seq. and §§ 35‑7‑1014, 1063, 1031) materially diverged from the Farm Bill and Wyoming’s prior 2019 hemp statute by:

Narrowing the definition of “hemp/hemp product” to exclude “synthetic substance[s].”
Expanding “THC” to encompass psychoactive structural, optical, or geometric isomers of THC, expressly including delta‑8. This aggregates delta‑9 plus delta‑8 THC toward the 0.3% total THC limit.
Scheduling both synthetic and naturally occurring delta‑8 THC in Schedule I under state law, and aligning the Controlled Substances Act’s hemp exemption with the newly narrowed definitions.

The result is that Wyoming criminalizes the manufacture, delivery, and possession-with-intent to deliver hemp products containing more than 0.3% combined delta‑8 and delta‑9 THC, or containing “synthetic substances,” even if those products may be legal under federal law as “hemp” based on delta‑9 THC alone.

Detailed Analysis

Precedents Cited and How They Shaped the Decision

Gonzaga University v. Doe, 536 U.S. 273 (2002): A § 1983 claim requires an “unambiguously conferred” federal right, not merely a statutory benefit or interest. Applied to hold that the Farm Bill’s provisions regulate entities but do not create individually enforceable rights for hemp businesses.
Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320 (2015): Supremacy Clause is not itself a cause of action; however, federal courts “sitting in equity” can enjoin state officers from enforcing preempted laws unless Congress forecloses that remedy. The panel acknowledged Armstrong’s equitable route but was bound by Tenth Circuit precedent limiting freestanding equitable preemption claims.
Safe Streets Alliance v. Hickenlooper, 859 F.3d 865 (10th Cir. 2017): Tenth Circuit precedent requiring a substantive right to support preemption claims; the panel expressed “discomfort” with Safe Streets’ compatibility with Armstrong but adhered to it.
Serna v. Denver Police Department, 58 F.4th 1167 (10th Cir. 2023): The Farm Bill’s transportation-through clause does not display congressional intent to create a private right enforceable under § 1983. Foreclosed plaintiffs’ attempt to ground a § 1983 preemption claim on that clause.
C.Y. Wholesale, Inc. v. Holcomb, 965 F.3d 541 (7th Cir. 2020): Persuasive authority suggesting the Farm Bill’s only plausible preemptive force against stricter state laws is the transportation-through clause; echoed here to explain why broader merits preemption would likely fail even if cognizable in equity, and would be premature without state-court narrowing.
Arizona v. United States, 567 U.S. 387 (2012): Federal courts should avoid preemption rulings before state courts have had a chance to construe the statute; invoked to defer interpreting SEA 24 to create conflict with federal law, particularly as to pass-through shipments.
National Pork Producers Council v. Ross, 598 U.S. 356 (2023): Confirmed core dormant commerce antidiscrimination principle and preserved Pike balancing (by a majority across opinions); provided current framework for non-discriminatory burdens analysis.
Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) and Kassel v. Consolidated Freightways Corp., 450 U.S. 662 (1981): For non-discriminatory laws, a plaintiff must show burdens on interstate commerce clearly excessive relative to local benefits; safety-related regulations receive deference.
Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992): Emphasized that owners of personal property should expect stringent regulation; the State’s police power may render personal property worthless without effecting a taking. Anchored the Court’s rejection of a regulatory takings theory for hemp products.
Mugler v. Kansas, 123 U.S. 623 (1887); Jacob Ruppert, Inc. v. Caffey, 251 U.S. 264 (1920); James Everard’s Breweries v. Day, 265 U.S. 545 (1924): Prohibition-era cases holding that restricting the manufacture and sale of intoxicants is a valid exercise of police power, not a compensable taking—extended here by analogy to modern cannabinoid regulation.
Holliday Amusement Co. v. South Carolina, 493 F.3d 404 (4th Cir. 2007): Outlawing video poker machines was not a taking despite business destruction; investors assume political and regulatory risk in highly regulated trades.
Wyoming Gun Owners v. Gray, 83 F.4th 1224 (10th Cir. 2023): Void-for-vagueness requires lack of fair notice or authorization of arbitrary enforcement; ordinary language suffices. Applied to uphold “psychoactive.”
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007): Declaratory judgment jurisdiction requires a substantial, immediate controversy; used to caution against premature declaratory relief.
Planned Parenthood of Indiana & Kentucky, Inc. v. Marion County Prosecutor, 7 F.4th 594 (7th Cir. 2021): Federalism counsels restraint when state courts have not yet construed newly enacted statutes; reinforced the Court’s reluctance to preemptively interpret SEA 24.
K.A. v. Barnes, 134 F.4th 1067 (10th Cir. 2025): Ex parte Young requires a particular duty to enforce and willingness to exercise that duty; affirmed dismissal of the Governor for lack of enforcement connection.
Northern Virginia Hemp & Agriculture, LLC v. Virginia, 125 F.4th 486 (4th Cir. 2025): Parallel rejection of a Dormant Commerce Clause challenge to a similar hemp-products restriction, reinforcing the mainstream of federal appellate analysis.

Legal Reasoning Issue-by-Issue

1) Preemption

The plaintiffs grounded their preemption claim in § 1983, arguing that Wyoming’s narrower definition of hemp conflicts with the federal definition and the Farm Bill framework. The Court held that:

The Supremacy Clause is not a source of rights and cannot itself support a § 1983 claim (Armstrong).
The Farm Bill contains no rights-creating language directed at protected individuals; it regulates producers and states, and thus fails Gonzaga’s private-right test.
Serna forecloses reliance on the Farm Bill’s transportation-through clause as a rights-conferring provision under § 1983.
Although the panel signaled that Armstrong likely permits equitable preemption claims without a private right (as many circuits have held), plaintiffs neither preserved nor pleaded a freestanding equitable claim; and under binding Tenth Circuit precedent (Safe Streets), such a claim would fail in any event absent a substantive right. The panel flagged its “discomfort” with Safe Streets, effectively inviting en banc reconsideration.
Merits aside, the only plausible preemptive force of the Farm Bill here would be the transportation-through clause, but relief would be premature: Wyoming courts may construe SEA 24 not to reach pass-through shipments, and plaintiffs did not clearly allege they engage in state-to-state transit “through” Wyoming.

2) Dormant Commerce Clause

SEA 24 does not differentiate between in-state and out-of-state products; it applies evenhandedly to all hemp within Wyoming. Accordingly, the plaintiffs were relegated to Pike balancing. The Court found:

No plausibly pled discriminatory purpose or effect; no per se invalidation.
No developed Pike showing that the burdens on interstate commerce are “clearly excessive” compared to Wyoming’s health and safety interests in regulating psychoactive cannabinoids such as delta‑8.
Claims about burdens from “possession” criminalization and interstate transit were both underdeveloped and potentially avoidable via state-court narrowing; Wyoming could be read not to reach federally compliant pass-through transit unconnected to in-state production, processing, or sale.

3) Regulatory Taking

The Court reframed the takings theory to match Supreme Court precedent on personal property and the police power:

The canonical regulatory takings frameworks (per se physical invasion, total economic wipeout, or Penn Central factors) arose largely in the real property context; the Supreme Court has long warned that owners of personal property assume a “traditionally high degree of control” by the State over commercial dealings (Lucas).
Restrictions on the manufacture, distribution, and sale of harmful or contentious commodities are classic exercises of police power, not takings—even where they destroy a business or render inventory unsellable (Mugler; Ruppert; James Everard’s Breweries; Holliday Amusement).
Hemp businesses could not reasonably expect a frozen regulatory environment in a rapidly evolving and controversial field; the State need not compensate when rebalancing public health policy.

4) Vagueness

SEA 24 excludes “synthetic substance[s]” and defines them as “any synthetic THC, synthetic cannabinoid or any other drug or psychoactive substance.” Plaintiffs argued “psychoactive” is vague and could sweep in CBD. The Court held:

“Psychoactive” has a common, industry-recognized meaning (“influencing the mind or mental processes”), is used consistently in federal drug policy discourse, and in SEA 24 is informed by cross-references to state definitions that tie “psychoactive” to stimulant, depressant, or hallucinogenic effects akin to controlled substances.
Wyoming has “affirmatively agreed CBD is not banned,” foreclosing the asserted CBD overbreadth.
On pre-enforcement review, the absence of a bespoke statutory definition does not render a term unconstitutionally vague; many statutes rely on ordinary meaning without inviting arbitrary enforcement (Wyoming Gun Owners).
Overbreadth doctrine is generally confined to the First Amendment, which is not implicated here.

5) Preliminary Relief and Jurisdictional Clean-Up

After the district court dismissed the complaint, the appeal from the denial of preliminary injunctive relief was moot and dismissed for lack of jurisdiction (Baker v. Bray; Hernandez v. Grisham). The Eleventh Amendment barred claims against the State and the Governor, with Ex parte Young relief limited to officials with a particular enforcement duty and demonstrated willingness to enforce (K.A. v. Barnes).

Impact and Implications

For hemp and cannabinoid markets

Within the Tenth Circuit, producers and retailers cannot use § 1983 to attack stricter state hemp definitions or delta‑8/synthetic bans on preemption grounds. The Farm Bill’s delta‑9-centric definition does not itself confer a private right to sell products that satisfy federal—but not stricter state—standards.
States retain substantial latitude to regulate psychoactive cannabinoids, including delta‑8, and to aggregate THC isomers for a 0.3% cap, so long as the regulation is evenhanded and plausibly tied to health and safety. Parallel Fourth Circuit authority (Northern Virginia Hemp) suggests a growing appellate consensus.
Regulatory takings theories are poor vehicles against prohibitions limiting the commercial use of newly contentious products; the Prohibition-era police-power cases remain robust and adapt readily to cannabinoids.
Vagueness attacks aimed at ordinary drug-policy terms like “psychoactive” face an uphill climb, especially where agencies and courts can anchor meaning in common usage and cross-referenced statutory definitions.

For litigation strategy

Preemption claims should be pled, if at all, as freestanding equitable actions under Armstrong, not as § 1983 claims—while acknowledging that Safe Streets remains binding in the Tenth Circuit. The panel’s extended discussion invites en banc consideration; litigants may preserve the issue for further review.
Transportation-through preemption remains the narrowest and most viable Farm Bill hook. Plaintiffs must plead concrete facts showing state-to-state transit “through” the regulating state and why the challenged law burdens that specific federal entitlement. Courts will be reluctant to rule without a developed record and state-court construction.
Dormant Commerce Clause claims after National Pork must either show discrimination or satisfy a rigorously substantiated Pike showing: quantified burdens on interstate commerce, a clear causal link to the state regulation, and a demonstration that local benefits could be achieved with materially less impact on interstate trade.
Takings claims should focus on real property or physical-occupation scenarios; personal property and product-use restrictions are, absent extraordinary circumstances, governed by the police-power line of cases.
On vagueness, build records showing variable enforcement or conflicting official interpretations; absent such evidence, ordinary-language terms will stand.

For policymakers and regulators

States can define “hemp” more stringently than the Farm Bill with respect to production and may lawfully regulate processing and sale, including scheduling of delta‑8, provided they do not obstruct federally compliant interstate transit “through” the state.
Clear statutory cross-references and agency guidance (for example, clarifying that CBD is non-psychoactive and not banned) help defeat vagueness challenges.
Aggregating THC isomers for total-THC caps and expressly addressing synthetic conversion routes (e.g., CBD-to-delta‑8) can withstand constitutional scrutiny when tied to safety concerns.

Complex Concepts Simplified

Preemption: When federal law overrides conflicting state law. But to sue under § 1983, the federal law must give you a personal right. The Farm Bill doesn’t do that. Armstrong allows courts, in equity, to enjoin preempted state laws even without a personal right, but the Tenth Circuit’s current precedent limits that route.
Dormant Commerce Clause: Even if Congress is silent, states cannot discriminate against or unduly burden interstate commerce. If a law doesn’t discriminate, plaintiffs must show that the burdens on interstate trade clearly outweigh the state’s benefits (Pike balancing).
Regulatory Taking: Government regulation can require compensation if it goes “too far,” typically in real property contexts. Longstanding doctrine holds that restricting the commercial use of potentially harmful products (like intoxicants) is a valid use of the police power and generally not a taking, even if businesses lose value.
Void-for-Vagueness: Laws must be clear enough for ordinary people to understand what is prohibited and must not encourage arbitrary enforcement. Using common terms like “psychoactive,” especially with statutory cross-references and agency clarifications, typically suffices.
Transportation-through Clause: A narrow Farm Bill protection prohibiting states from blocking the interstate movement of federally compliant hemp “through” their territory. It guards transit, not in-state production or sale; and it does not itself create a private right under § 1983.
Ex parte Young: A doctrine allowing suits for prospective relief against state officials who have a specific duty and willingness to enforce a challenged law; sovereign immunity otherwise bars suits against the State itself.

Notable Signals and Open Questions

Armstrong’s equitable preemption pathway: The panel’s thorough survey of sister-circuit authority recognizing freestanding equitable preemption suits, combined with its stated “discomfort” with Safe Streets, suggests the Tenth Circuit may revisit the issue en banc. Until then, Safe Streets controls.
State-court narrowing and transportation-through: Whether Wyoming courts will construe SEA 24 to avoid conflicts with the Farm Bill’s transit protection remains open. Future litigants should develop concrete pass-through fact patterns before pursuing federal preemption relief.
Evolution of federal policy: Any congressional refinement of the Farm Bill’s definition of hemp (for example, expanding to total THC or addressing synthetics) could reset the preemption landscape. Agency rulemaking and FDA/DEA positions on synthetic conversion and intoxicating hemp derivatives are also relevant.
Pike after National Pork: While the test remains, courts are scrutinizing plaintiffs’ proof of concrete interstate burdens versus generalized economic harm; safety rationales receive deference if not “illusory.”

Conclusion

Green Room cements several principles in the Tenth Circuit’s hemp jurisprudence. First, the 2018 Farm Bill is not a font of § 1983-enforceable rights for industry participants seeking to preempt stricter state definitions or product bans; and while Armstrong’s equitable path remains doctrinally viable elsewhere, Tenth Circuit litigants must navigate Safe Streets unless and until it is revisited. Second, state police power over intoxicating and psychoactive substances comfortably encompasses delta‑8 and synthetic cannabinoids; evenly applied prohibitions and total-THC caps survive Dormant Commerce Clause and takings challenges absent a robust showing of discrimination or excessive interstate burdens. Third, vagueness attacks on ordinary drug-control terminology like “psychoactive” will fail where context, cross-references, and agency positions provide fair notice and limit discretion.

For industry actors, the immediate practical lesson is to tailor federal claims with precision: plead Armstrong-style equitable preemption (preserving Safe Streets for appellate review), develop concrete facts on interstate transit “through” state territory, and quantify Pike burdens with credible economic and logistical evidence. For regulators, SEA 24 offers a roadmap for drafting durable cannabinoid regulations—ground definitions in ordinary usage and cross-referenced statutes, articulate safety rationales, and clarify non-psychoactive exclusions like CBD. In a rapidly evolving cannabinoid market, Green Room underscores that, absent federal rights-creating language or clear conflicts with protected interstate transit, state health and safety regulations will command substantial deference.