You’re not supposed to eat cannabis in Kansas. But shops all over the state selling vaping oil and chewing gum with cannabis ingredients will do the trick.
And now it looks like anyone who catches them can land in hot water. In at least one county, shopkeepers have been notified: either the goods will be delivered, or the police can confiscate things soon.
The subject of discussion is the products “Delta 8”.
They often contain only trace amounts of the compound people traditionally associate with marijuana – delta-9 tetrahydrocannabinol, or THC.
But they promise buyers something else – a molecular difference called delta.8 THC.
The trend adds a layer of complications for anyone trying to figure out what they can and can’t do legally if they don’t allow medical or recreational marijuana, but do allow some cannabis products with very small amounts of the compounds in the stronger stuff.
right Now Attorney General Derek Schmidt says Delta 8 Legal Just in specific circumstances. One of the biggest caveats: The product can’t contain too much delta-8.
The results of his official position appear in Hays, where city police and the county sheriff can begin taking products off the shelves. But Deputy Police Chief Brian Dawson says the officers plan to require store owners to voluntarily surrender items.
However, Dawson made it clear that police have discretion to apprehend anyone they find in possession of illegal Delta 8 products.
This situation has alarmed advocacy groups, who fear that law enforcement agencies will embark on a campaign to harass people and disrupt their businesses.
“We strongly believe that persecution from Kansas citizens, retailers, distributors, and ancillary business owners is detrimental to our state and its people,” several cannabis and cannabis pro groups said in a Thursday press release.
They are the Kansas Hemp Chamber of Commerce, the Kansas Hemp Alliance, the Kansas Cultivated Association, and Kansas Hemp.
In an interview with the Kansas News Service, Robert Anderson, an Ellis County attorney in Hays, said the situation is a mess. People do not know what is legal.
“Most people and business owners think they are selling and owning legitimate products,” he said. “I think the legislature has to act … if it’s going to make everything legal or make everything illegal – and that’s in terms of marijuana and hemp – it makes it much clearer about how we do our work.”
He sued one person who wasn’t a store owner for Delta 8 distribution last year, then sent out warnings to store owners several months ago and again last week.
Cannabis advocates say Anderson imposes very strict and legally unjustified criminal penalties on Delta 8 that should only apply to traditional Delta 9, but Anderson says he’s just doing his job.
“My personal opinion is that marijuana and hemp should be legal, or at least non-offensive,” he said. “However, as an Ellis County attorney, it is my duty to apply the laws as written.”
How did it all start at Hayes
Last week, Anderson wrote to local stores that sell delta-8, asking them to turn over products with significant levels of delta-8 to law enforcement — promising in return not to prosecute.
But to understand how things got to this point, you have to back up for about a year.
Anderson says he first learned early last year of stores selling Delta 8. He was sure the products were legal on time.
Months later, the legislature made some amendments to the cannabis law that it felt had muddied the waters and made some Delta 8 products illegal.
He tried to ask lawmakers to clarify the matter, and turned to the attorney general’s office for answers, but he didn’t get much.
Then he sued what may be the first Delta 8 case – a thief who stole things from a store.
A district court judge agreed that the products were illegal because the manufacturer’s documents showed high levels of delta-8 THC, not just traces of it.
Meanwhile, the Kansas Bureau of Investigation urged the attorney general’s office. Like Anderson, they wanted Schmidt to say how he Read current state law.
On December 2, Schmidt released his official opinion. The attorney general’s opinion is not a court ruling, but it does carry some legal weight.
He concluded that delta-8 products are only legal if they contain less than 0.3% THC—the same bright line that applies to delta-9 THC levels. Furthermore, delta-8 THC is only allowed in products produced from industrial hemp.
In other words, the products can’t come from the type of potent cannabis plants used to produce the typical poison-inducing marijuana that people drive, say, to Colorado.
Therefore, legality or illegality lies in the specifics of any particular product. The cutoff is 0.3%.
The situation echoes the confusion of the past “Full Spectrum” CBD Products.
Research has shown that Delta 8 products are most popular in states where consumers can’t get the real deal — marijuana is rich in Delta 9 product.
Being in that gray area has also prompted warnings from groups like the National Organization for the Reform of Marijuana Laws, or NORML. It warns consumers against purchasing Delta 8 products because they “have not been tested and may contain impurities.”
What happens next in Ellis County?
Anderson doesn’t have a huge appetite for going after business owners. He says he has asked local law enforcement to wait months to seek clarification.
“They were very willing to do their job and act,” he said. “They have been very patient with me, in my requests for them to defer and making sure we are absolutely certain we know what the law is, and how to implement it.”
With Schmidt’s official opinion, he says it’s now clear. He says many Delta 8 vaping products and foods exceed the KS threshold of 0.3%, according to lab analyzes disclosed by the manufacturers.
So on December 29, he sent letters to local stores informing them of Schmidt’s decision and providing a “final warning”.
“This office cannot continue to seek inaction in Ellis County,” the letter read. “The best thing you can do to rid yourself of these products is to contact law enforcement, tell them you own these products, and ask them to come and confiscate them.”
Dawson, the deputy police chief, says one of the store owners has already called the police about handing over his inventory.