No Private or Equitable Right to Preempt State Hemp Laws Under the 2018 Farm Bill: Tenth Circuit Upholds Wyoming’s Delta‑8 Restrictions

Introduction

In Green Room LLC v. State of Wyoming (10th Cir. Oct. 27, 2025), a coalition of hemp businesses and a retailer challenged Wyoming’s 2024 overhaul of its hemp regime—Senate Enrolled Act 24 (SEA 24)—which (1) excludes “synthetic substances” from the definition of hemp, (2) expands “THC” to include psychoactive isomers like delta‑8, and (3) schedules both naturally occurring and synthetic delta‑8 THC under state controlled substances law. Plaintiffs alleged federal preemption under the 2018 Farm Bill, Dormant Commerce Clause violations, an uncompensated regulatory taking, and unconstitutional vagueness; they also appealed denial of preliminary relief.

Writing for a unanimous panel (Hartz, McHugh, Moritz, JJ.), Judge Hartz affirmed dismissal. The court held the plaintiffs could not proceed on a preemption theory because the 2018 Farm Bill creates no privately enforceable right under 42 U.S.C. § 1983—and, under binding circuit precedent, no freestanding equitable preemption action either. The court also rejected the Dormant Commerce Clause, takings, and vagueness claims and dismissed the appeal of the preliminary injunction as moot.

Summary of the Opinion

• Preemption: Dismissed because the plaintiffs did not identify an “unambiguously conferred” federal right enforceable under § 1983. The Supremacy Clause is not a source of rights, and the 2018 Farm Bill regulates but does not protect an identifiable class. The panel adhered to Tenth Circuit precedent (Safe Streets Alliance) requiring a substantive federal right even for a freestanding equitable preemption claim, although it expressly signaled discomfort with that rule in light of Armstrong v. Exceptional Child Center.
• Dormant Commerce Clause: No facial discrimination; plaintiffs failed to plausibly plead a burden on interstate commerce that is “clearly excessive” under Pike balancing. The court also declined to assume, pre-enforcement and without a state-court construction, that Wyoming’s law bars through-shipments that federal law protects.
• Regulatory Taking: No taking occurred. Regulating (even to the point of devaluing) commercial personal property in a heavily regulated field—here, psychoactive cannabis isomers like delta‑8—falls within the state’s police power and does not trigger compensation.
• Vagueness: SEA 24’s exclusion of “synthetic substances” and use of the term “psychoactive” are not unconstitutionally vague. The term has a common and industry-accepted meaning, is reinforced by cross-references in the statute, and the State represented that CBD is not prohibited.
• Preliminary Injunction Appeal: Moot after dismissal on the merits.

Factual and Regulatory Background

The 2018 Farm Bill removed “hemp” from the federal definition of marijuana if its delta‑9 THC concentration does not exceed 0.3% dry weight, created a cooperative federalism framework under which states may assume “primary regulatory authority” via USDA-approved plans, expressly allowed interstate transportation of hemp and hemp products, and included an anti-preemption clause permitting state laws “more stringent than” federal requirements regarding hemp production.

Wyoming initially tracked the federal definition but, in 2024, SEA 24 made three consequential changes:

• “Hemp” now excludes products containing any “synthetic substance.”
• “THC” now encompasses “psychoactive structural, optical or geometric isomers,” capturing delta‑8 THC alongside delta‑9; products exceeding a combined 0.3% by dry weight are unlawful.
• Delta‑8 (natural and synthetic) is scheduled under Wyoming’s Controlled Substances Act, with the hemp exemption narrowed to match the new definition.

Plaintiffs—hemp producers, processors, and retailers—asserted that SEA 24 crippled a sizable segment of their businesses (notably delta‑8 products).

Detailed Analysis

1) Preemption

Issue Presented

Whether SEA 24 is preempted by the 2018 Farm Bill because it narrows the definition of hemp and prohibits certain hemp products that federal law permits.

Holding

The court held that plaintiffs failed to state a cognizable preemption claim under § 1983 because the Farm Bill confers no enforceable private right. Moreover, under Tenth Circuit precedent (Safe Streets Alliance v. Hickenlooper), a freestanding equitable preemption claim likewise requires a substantive federal right—again absent here.

Reasoning

• No § 1983 right: The court applied Gonzaga University v. Doe to require an “unambiguously conferred” federal right. The Supremacy Clause is not one (Armstrong), and the Farm Bill’s provisions are addressed to regulators and regulated parties—not phrased in terms of individual rights. The Tenth Circuit’s earlier decision in Serna v. Denver Police Department already held that the Farm Bill’s transportation-through provision does not confer private rights enforceable under § 1983.
• No freestanding equitable cause of action in this circuit: While Armstrong affirmed federal courts’ equitable power to enjoin preempted state action unless displaced by Congress, the Tenth Circuit’s own Safe Streets Alliance decision requires the same “substantive right” showing for an equitable preemption claim as for § 1983. The panel noted that other circuits recognize a broader Armstrong-based equitable route but found itself bound by Safe Streets, expressly voicing “discomfort” with the circuit rule.
• Even if equitable relief were theoretically available: The only plausible preemption hook would be the Farm Bill’s protection of interstate “transportation through” a state. Following Seventh Circuit reasoning in C.Y. Wholesale, that clause might preempt anti-through-transport provisions. But the court deemed relief premature because (a) Wyoming courts could construe SEA 24 to avoid conflict (Arizona v. United States), and (b) the plaintiffs did not clearly allege that they are engaged in protected through-shipments. Declaratory and injunctive relief therefore lacked the immediacy required by MedImmune.

Precedents Cited and Their Influence

• Gonzaga University v. Doe: Anchors the § 1983 requirement that statutes must speak in terms of rights, not merely regulate conduct.
• Armstrong v. Exceptional Child Center: Recognizes an equitable path to enjoin preempted state action; the panel canvasses many circuits that embrace Armstrong’s approach for preemption claims, but Safe Streets binds the Tenth Circuit to a narrower view.
• Safe Streets Alliance v. Hickenlooper: Tenth Circuit precedent foreclosing a freestanding equitable preemption claim absent a substantive right.
• Serna v. Denver Police Department: Holds the Farm Bill’s transportation-through clause does not confer private rights; controls here.
• C.Y. Wholesale, Inc. v. Holcomb (7th Cir.): Persuasive authority that, at most, the Farm Bill preempts state interference with through-transport; relied on to show that broader preemption is unlikely even if an equitable claim were cognizable.

Key Takeaway on Preemption

In the Tenth Circuit, hemp businesses cannot use § 1983—or, under current circuit law, a freestanding equitable action—to preempt stricter state hemp restrictions under the 2018 Farm Bill. Only narrow, as-yet-unproven “through-transport” preemption might be available, and even that requires well-pled facts and awaits state-law construction.

2) Dormant Commerce Clause

Issue Presented

Whether SEA 24 impermissibly burdens interstate commerce, either by discrimination or under Pike balancing.

Holding

No violation was stated. SEA 24 does not discriminate on its face, and plaintiffs failed to plausibly plead a substantial burden that is clearly excessive relative to local benefits.

Reasoning

• No discrimination: SEA 24 applies equally to in-state and out-of-state products; the plaintiffs did not argue otherwise.
• Pike balancing: Plaintiffs carry the burden to show that burdens on commerce are clearly excessive in relation to local interests (health and safety). They did not develop the required balancing argument. Moreover, the court declined to assume that SEA 24 bars protected through-shipments, adhering to constitutional avoidance and deference to future state-court constructions (Arizona v. United States).
• Context: After National Pork Producers Council v. Ross, Pike remains viable but demands concrete, non-speculative allegations of burdens and comparative analysis of local benefits. Plaintiffs’ generalized assertions fell short.

Precedents Cited and Their Influence

• National Pork Producers Council v. Ross: Confirms Pike’s survival (with a divided Court); constrains extraterritoriality theories; underscores the high bar for non-discrimination Pike claims.
• Pike v. Bruce Church; Kassel v. Consolidated Freightways: Define the balancing framework and caution deference where safety is at issue.
• Arizona v. United States: Supports waiting for state-court narrowing constructions before finding conflicts or burdens.
• Northern Virginia Hemp & Agriculture v. Virginia (4th Cir. 2025): Parallel outcome rejecting a DCC challenge to Virginia’s hemp restrictions; cited for alignment.

3) Regulatory Taking

Issue Presented

Whether SEA 24 effects an unconstitutional taking by undermining investment-backed expectations in delta‑8 and related hemp products.

Holding

No taking. Regulating commercial personal property in a heavily regulated sector, even to the point of destroying its market value, is a classic exercise of the police power and does not trigger compensation.

Reasoning

• Per se categories (physical invasion; total wipeout of real property value) do not fit; this is a regulation of personal property.
• Penn Central factors: Whatever the economic impact on plaintiffs, investment-backed expectations are tempered in fields “traditionally of local concern” and subject to fluctuating restrictions (Lucas, Holliday Amusement). Personal property has long been more susceptible to regulation without compensation.
• Analogy to alcohol regulation: Supreme Court precedents (Mugler; Ruppert; Everard’s Breweries) reject takings claims when governments outlaw particular uses of intoxicants even if inventory value collapses. The same logic applies to psychoactive cannabinoids like delta‑8.

Precedents Cited and Their Influence

• Mugler v. Kansas; Jacob Ruppert, Inc. v. Caffey; James Everard’s Breweries v. Day: Foundational police-power cases supporting the constitutionality of restricting intoxicant-related commerce without compensation.
• Lucas v. South Carolina Coastal Council; Lingle v. Chevron: Define the per se and Penn Central frameworks; Lucas emphasizes the greater regulatory exposure of personal property.
• Holliday Amusement Co. v. South Carolina (4th Cir.): Validates the non-compensability of regulatory shifts that devalue personal property in contentious, heavily regulated markets.

4) Vagueness

Issue Presented

Whether SEA 24’s exclusion of “synthetic substances” and use of “psychoactive” is unconstitutionally vague or invites arbitrary enforcement.

Holding

No. The term “psychoactive” has an ordinary, industry-recognized meaning, reinforced by statutory cross-references. Plaintiffs’ speculation about CBD was undercut by the State’s representation that CBD is not banned and by the statute’s structure. Arbitrary-enforcement arguments were waived on appeal.

Reasoning

• Fair notice: “Psychoactive” is commonly understood (mind-altering), used in the industry, and clarified by Wyoming’s internal cross-references to analog provisions keyed to controlled substance effects on the central nervous system.
• Not every interpretive question is a constitutional defect: Difficult or line-drawing questions do not equate to unconstitutional vagueness; state courts can resolve edge cases (Planned Parenthood of Ind. & Ky.; Woodhull Freedom Foundation).

Precedents Cited and Their Influence

• Wyoming Gun Owners v. Gray (10th Cir.): Explains that undefined terms are not automatically vague; courts look for fair notice and constraints on arbitrary enforcement.
• Planned Parenthood of Ind. & Ky. v. Marion County Prosecutor (7th Cir.); Woodhull Freedom Foundation v. United States (D.C. Cir.): Caution against facial vagueness where statutes are amenable to clarifying construction and ordinary meaning.

5) Preliminary Injunction Appeal

The appeal was dismissed as moot once the district court dismissed the complaint on the merits (Baker v. Bray; Hernández v. Grisham). A preliminary injunction cannot exist in a vacuum after the underlying claims are gone (Rio Grande Silvery Minnow).

Key Doctrines and Concepts, Simplified

• Private right under § 1983: To sue under § 1983 for a statutory violation, the statute must unambiguously confer an individual “right”—it is not enough that it regulates conduct or benefits a class indirectly (Gonzaga).
• Equitable preemption actions after Armstrong: Federal courts have inherent equitable power to enjoin state actions preempted by federal law unless Congress displaced that remedy. Most circuits read Armstrong to allow such suits without a separate private right. The Tenth Circuit, however, remains bound by Safe Streets Alliance, which requires a substantive right even for equitable preemption—a meaningful circuit divergence the panel flagged but did not resolve.
• Anti-preemption and through-transport clauses in the Farm Bill: Congress invited stricter state “production” rules and protected interstate “transportation through” a state. Many courts view the latter as the only express preemptive piece in the hemp context.
• Dormant Commerce Clause (Pike): Non-discriminatory laws can be invalidated only if the burdens on interstate commerce are clearly excessive relative to local benefits. Health and safety rationales are given substantial deference, and plaintiffs must plead concrete burdens.
• Regulatory takings and personal property: Devaluation of personal property by regulation—especially in vice or safety-sensitive markets—rarely requires compensation. The police power includes authority to prohibit harmful commercial uses without paying for lost value.
• Vagueness: A statute is vague only if ordinary people cannot understand what is prohibited or if it invites arbitrary enforcement. Undefined terms with ordinary meanings, especially when contextualized in a statutory scheme, typically pass muster.

Practical and Doctrinal Impact

For Industry and Regulators

• State latitude to restrict delta‑8 and other psychoactive hemp derivatives: The decision effectively greenlights state bans or tight regulations on psychoactive isomers and “synthetic” cannabinoids within the Tenth Circuit, absent a successful federal preemption or DCC challenge.
• Litigation strategy recalibration: In the Tenth Circuit, plaintiffs cannot rely on § 1983—or a freestanding equitable claim—to enforce the Farm Bill against stricter state laws. Any preemption suit will need either a different federal hook or to target the narrow “through-transport” protection with concrete facts.
• Dormant Commerce Clause claims must be pled with specificity: Generic business harm allegations will not do. Plaintiffs must identify tangible burdens on interstate trade and weigh them against articulated health/safety objectives.
• Investments in delta‑8 inventory and equipment are exposed: The court underscores that business expectations in contentious, heavily regulated markets carry inherent regulatory risk—and compensation for losses is unlikely.
• Compliance clarity: “Psychoactive” will be read in its ordinary, mind-altering sense, guided by cross-references to controlled-substance effects. While CBD is not banned under the State’s position, producers should closely track agency guidance and state-court interpretations.

For Appellate Doctrine

• Circuit divide on equitable preemption: The panel catalogs a broad consensus in other circuits reading Armstrong to allow preemption suits in equity without a private right, but the Tenth Circuit remains bound by Safe Streets Alliance. The panel’s candid “discomfort” could invite en banc review or eventual Supreme Court resolution.
• Federalism and avoidance: The court repeatedly resists speculative, pre-enforcement conflicts where state courts might adopt narrowing constructions—an approach likely to recur in challenges to rapidly evolving cannabis and hemp regulations.

What the Court Did Not Decide

• The merits of any express preemption claim under the Farm Bill’s “transportation through” clause as applied to real-world shipments through Wyoming; the court left that question open pending concrete allegations and a state-court construction.
• Whether, if unconstrained by Safe Streets Alliance, an Armstrong-style equitable preemption action would lie in this circuit; the panel flagged the issue but remained bound by precedent.
• Any First Amendment “overbreadth” argument (not applicable here) or laboratory-method challenges to distinguishing synthetic versus natural delta‑8 (waived).

Conclusion

Green Room resolves, decisively and pragmatically, the first wave of federal challenges to Wyoming’s delta‑8 crackdown. The Tenth Circuit:

• Reaffirms that the 2018 Farm Bill creates no privately enforceable right—and, in this circuit, supports no freestanding equitable preemption claim—to invalidate stricter state hemp laws.
• Clarifies that non-discriminatory hemp restrictions are unlikely to fail under the Dormant Commerce Clause absent well-pled, concrete interstate burdens that plainly outweigh health and safety aims.
• Confirms that shifts in the regulation of commercial personal property—especially psychoactive substances—do not amount to compensable takings, even if they devastate a business segment.
• Holds that the term “psychoactive” provides adequate notice and constraint, undercutting vagueness attacks on SEA 24’s core definitions.

The opinion signals broad state discretion to police psychoactive hemp derivatives, with only a narrow potential preemption carveout for interstate through-shipments—and even that awaits a concrete record and state-court guidance. For litigants, Green Room underscores the importance of choosing viable federal theories, pleading specific interstate burdens, and anticipating judicial deference to state health and safety regulation in this evolving policy space. For doctrine, the panel’s forthright critique of the circuit’s constraint on equitable preemption may catalyze further review, but until then, Safe Streets remains the controlling law in the Tenth Circuit.