Delta 8’s legality is causing confusion for consumers and for lawmakers in Kansas. Early in December, the Kansas Attorney General Derek Schmidt released an opinion on Delta 8.
“Delta-8 tetrahydrocannabinol (Delta-8 THC) comes within the definition of a Schedule I controlled substance and is unlawful to possess or sell in Kansas unless it’s made from industrial hemp and is contained in a lawful hemp product having no more than 0.3% total tetrahydrocannabinols (THC),” wrote Attorney General Schmidt in a press release.
“Unlawful hemp products include cigarettes, cigars, teas, and substances for use in vaping devices. Delta-8 THC derived from any source other than industrial hemp is a Schedule I controlled substance and unlawful to possess or sell in Kansas. Other federal and state laws and regulations place additional limits on the legality of products containing THC and other cannabinoids.”
This has caused confusion as this new definition of hemp and Delta 8 contradicts the state’s current hemp laws. Industrial hemp contains less than 0.3 percent of Delta 9, the main psychoactive cannabinoid in cannabis that creates the euphoric high. But the attorney general has stated the law now says a product must contain less than 0.3 percent of any THC.
Hays, Kansas
The Attorney General opinion has sparked change in Hays, Kansas. Attorney Robert Anderson of Ellis County (where Hays is located) has followed up the Attorney General’s opinion with a statement of his own. Businesses selling Delta 8 products need to turn their products over to law enforcement. If not, their products could become forcibly removed. Business owners could then receive potential jail time for handling and selling a Schedule I drug.
Anderson has held back law enforcement up until this point from going after the hemp businesses of Kansas. But he can’t hold them back any more.
“Most people and these business owners believe that they’re selling and possessing lawful products,” Anderson explained. “I think the Legislature should act … If they would just make everything legal or make everything illegal — and that’s in terms of marijuana and hemp — it makes it much more clear cut on how we do our job.
“As the Ellis County attorney, I do have a duty to enforce the laws as written,” Anderson added.
Some store owners have turned over their Delta 8 products as the Ellis County attorney has asked. Others have resisted, continuing to sell their products still defined as legal under the state law. An opinion from the Kansas Attorney General is simply an opinion. Laws don’t change across the state. However, an opinion can have influence on lawmakers, who do change the laws.
Opposition
In January, a coalition spoke out against Attorney General Schmidt and Attorney Anderson’s interpretation of the state hemp law. “The attorney’s opinion is in direct conflict with the United States Drug Enforcement Agency and federal laws governing industrial hemp,” the coalition said in a press release. “We strongly believe the resulting persecution of Kansas citizens, retailers, distributors and ancillary business owners is detrimental to our state and its people.” The coalition is made up of the Kansas Cannabis Chamber of Commerce, the Kansas Cannabis Coalition, Planted Association of Kansas, and Kansans for Hemp.
The coalition fears this change in definition will negatively impact businesses and consumers. Currently, both medical and recreational cannabis is illegal in the state, which has led to a higher demand in Delta 8.
“The law currently states, hemp products derived from industrial hemp cannot exceed a total THC percentage of 0.3%. If the THC detected in a product is greater than 0.3% in delta-8 THC (or varying forms of THC other than delta-9 THC), that product by definition is not a controlled substance but rather an unlawful substance,” the coalition continued.
Future
It’s still unclear if Delta 8 is illegal in Kansas. Current state law and the Attorney General conflict each other. As the law reads now, Delta 8 is legal in Kansas. However this is subject to change, especially with a strong opinion against it from Attorney General Schmidt. Should more information become available, we will update you with the latest.
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