Published January 7th, 2022 at 11:01 AM
You’re not supposed to get high off cannabis in Kansas. But shops across the state sell vaping oil and gummies with cannabis ingredients that’ll do the trick.
And now it appears that anyone caught with them could land in hot water. In at least one county, shop owners have been put on notice: Either hand over the goods, or police could seize the stuff soon.
At issue are “delta-8” products.
They often contain only trace amounts of the compound that people traditionally associate with marijuana — delta-9 tetrahydrocannabinol, or THC.
But they promise buyers something else — a molecular variation called delta-8 THC.
The trend adds a layer of complication for anyone trying to figure out what they can and can’t legally do in a state that doesn’t allow medical or recreational marijuana, but does allow some hemp products with very small amounts of the compounds found in stronger stuff.
Now Attorney General Derek Schmidt says delta-8 is legal only in specific circumstances. One of the biggest caveats: A product can’t contain very much delta-8.
The results of his formal position are playing out in the city of Hays, where the city police and county sheriff could start taking products from shelves. But Deputy Police Chief Brian Dawson says officers plan to ask shop owners to voluntarily turn the stuff in.
Still, Dawson made clear that police have the discretion to arrest anyone they find in possession of illegal delta-8 products.
The situation has prompted alarm among advocacy groups, who fear law enforcement agencies will embark on a campaign of harassing people and disrupting their businesses.
“We strongly believe the resulting persecution of Kansas citizens, retailers, distributors and ancillary business owners is detrimental to our state and its people,” several pro-cannabis and pro-hemp groups said in a press release Thursday.
They are the Kansas Cannabis Chamber of Commerce, the Kansas Cannabis Coalition, Planted Association of Kansas, and Kansans for Hemp.
In an interview with the Kansas News Service, Ellis County Attorney Robert Anderson in Hays said the situation is a mess. People don’t know what’s legal.
“Most people and these business owners believe that they’re selling and possessing lawful products,” he said. “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.”
He prosecuted one person who wasn’t a shop owner for delta-8 distribution last year, and then sent out warnings to shop owners several months ago and again last week.
Cannabis advocates say Anderson is imposing legally unjustified and overly strict 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 a very minimum decriminalized,” he said. “However, as the Ellis County attorney, I do have a duty to enforce the laws as written.”
Last week, Anderson wrote to local shops that sell delta-8, asking them to voluntarily hand over products with significant delta-8 levels to law enforcement — and promising in return not to prosecute.
But to understand how things got to that point, you have to back up nearly a year.
Anderson says he first became aware early last year of shops selling delta-8. He was pretty sure the products were legal at the time.
Months later, the legislature made some tweaks to its hemp law that he felt muddied the waters and made certain delta-8 products illegal.
He tried asking lawmakers to clarify the matter, and turned to the attorney general’s office for answers, but didn’t get much.
Then he prosecuted what may be the state’s first delta-8 case – a burglar who stole the stuff from a shop.
The district court judge agreed that the products were illegal because the manufacturer’s own documentation showed high levels of delta-8 THC, not simply traces of it.
Meanwhile, the Kansas Bureau of Investigation prodded the attorney general’s office. Like Anderson, they wanted Schmidt to say how he reads current state law.
On Dec. 2, Schmidt issued his formal opinion. An attorney general’s opinion isn’t a court ruling, but carries some legal weight.
He concluded 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. Moreover, 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 intoxication-inducing marijuana that people drive to, say, Colorado for.
So, the legality or illegality lies in the specifics of any given product. And the cutoff is 0.3%.
The situation echoes past confusion over “full spectrum” CBD products.
Research has shown delta-8 products are most popular in states where consumers can’t get the real deal — marijuana rich in delta-9.
Existing in that gray area has also drawn warnings from groups like the National Organization for the Reform of Marijuana Laws, or NORML. It cautions consumers against buying delta-8 products because “they are untested and may contain impurities.”
Anderson doesn’t have much appetite for prosecuting business owners. He says he asked local law enforcement to wait for months while he sought clarification.
“They’ve been very much ready to do their job and act,” he said. “And they’ve been very patient with me, in my requests for them to hold off and make sure that we are absolutely certain that we know what the law is, and how to enforce it.”
With Schmidt’s formal opinion, he says the matter is now clear. And he says many delta-8 vaping products and edibles exceed Kansas’ 0.3% threshold, according to lab analyses disclosed by the manufacturers.
So on Dec. 29, he sent letters to local shops, informing them of Schmidt’s decision and offering a “final warning.”
“This office cannot continue to request that law enforcement in Ellis County not act,” the letter says. “The best thing you can do to rid yourself of these products is to call law enforcement, advise them that you are in possession of these products, and request that they come seize them.”
Dawson, the deputy police chief, says one shop owner has already contacted the police about turning over his stock.
Celia Llopis-Jepsen reports on consumer health and education for the Kansas News Service, a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio focused on health, the social determinants of health and their connection to public policy.