Confusion in Kansas: State Attorney General Says Delta-8 THC is a Controlled Substance
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Confusion in Kansas: State Attorney General Says Delta-8 THC is a Controlled Substance

AG Derek Schmidt’s opinion on delta-8 has already started to play out in one city in Kansas, where law enforcement could begin taking products off shelves that fit Schmidt’s description.

January 14, 2022

On Dec. 2, 2021, Kansas Attorney General Derek Schmidt released an opinion declaring delta-8 THC is illegal to possess or sell in Kansas under specific circumstances.

The opinion reads: “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 is made from industrial hemp and is contained in a lawful hemp product having no more than 0.3% total tetrahydrocannabinols (THC). 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.”

Schmidt’s opinion on delta-8 has already started to play out in one city in Kansas, Hays, where law enforcement could begin taking products that fit Schmidt’s description off shelves or ask shop owners to voluntarily turn in their products, according to a Butler County Times-Gazette article.

The article states that Hays Deputy Police Chief Brian Dawson “made clear” that law enforcement may arrest anyone they discover possessing illegal delta-8 products.

And Robert Anderson, an attorney from Ellis County (where Hays is located), reportedly wrote to local shops that sell delta-8 on Dec. 29, 2021, asking them to turn in all illegal delta-8 products to law enforcement. He also noted that those who do so would not risk Schedule 1 possession charges, according to the news outlet.

According to the news outlet, Anderson said the situation is “a mess” in an interview with Kansas News Service.

“Most people and these business owners believe that they’re selling and possessing lawful products,” Anderson 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.”

Anderson reportedly prosecuted a non-shop owner for distributing delta-8 last year and then sent out warnings to owners several months prior to his notice in December, according to the news outlet.

However, cannabis advocates disagree with Anderson’s position, stating it is “detrimental to the state and its people.”

In a Jan. 5 press release, the Kansas Cannabis Chamber of Commerce, the Kansas Cannabis Coalition, Planted Association of Kansas, and Kansans for Hemp announced their opposition to Anderson’s classification of delta-8 as a Schedule 1 controlled substance, noting that it “is in direct conflict with the U.S. Drug Enforcement Agency and federal laws governing industrial hemp.”

The organizations go on to assert that despite the state attorney general’s opinion, current state law classifies products with more than 0.3% total THC as “unlawful,” but not controlled substances.

“Those found in possession of products containing delta-9 THC over .3% by weight in the final product are considered a controlled substance and can be charged as such. Delta-8 products, however, that contain more than .3% THC (excluding delta-9), while unlawful, are not a controlled substance and should not be prosecuted as a Schedule 1 controlled substance,” the release states.

The release also encourages shops across the state that are currently selling delta-8 products to ensure the products comply with the state’s total THC limit and to keep any paperwork that validates where their products were sourced from.

Despite the contention, “Anderson says he’s just doing his job,” the Butler County Times-Gazette reports.

“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.”

According to the Kansas Cannabis Chamber website, a zoom meeting will be held Jan. 16 at 6:00 p.m. to discuss the “recent confusion surrounding delta-8” in Kansas. Individuals can RSVP here.