County Attorney warns Delta-8 illegal; pulled from stores

In the last year, a new product popped up in stores across Ellis County.

Found on shelves in local convenience and liquor stores, Delta-8 products were being sold in a variety of forms, from edible to vape-based.

Often found near CBD or nicotine-based products, Delta-8 has been readily available for months across the state.

But while the product was being openly purchased and consumed, recent guidance from the Ellis County Attorney and Kansas Attorney General Derek Schmidt clarified Delta-8 is illegal to sell and possess in Kansas.

After informing area businesses of the new clarification, most shops in the county have removed the product from their shelves, but now Ellis County Attorney Robert Anderson, warned those that continue to sell or possess the product are now in clear violation of the law.

“Over the last 18 to 24 months across the state of Kansas, businesses have been begun selling hemp-derived Delta-8 THC products — vape pens, gummies, candy, etc.” Anderson said. “These products are typically anywhere between 60-99 percent concentrated Delta-8 THC. Arguably, these products were legal prior to the April 29 amendment. After the law was amended, there was a lot of confusion concerning whether or not these products in particular were now legal or illegal.”

He said his department has interpreted the change in law to mean that these products are now illegal, but had not taken action against those in violation.

But that grace ends now.

“On Dec. 2, the Kansas Attorney General issued an opinion on this very topic and concluded that these products are illegal,” Anderson said. “A recent criminal case in Ellis County took up this issue as well. A district court judge in the 23rd Judicial District found, among other things, that for a hemp product to be lawful, it must contain a total THC concentration of less than 0.3 percent. Bottom line: Hemp-derived Delta-8 THC products are illegal.”

Delta-8 came to prominence as a THC product, often thought of as a lighter version of traditional marijuana, processed from hemp, that carried inherent benefits of use, without the psychotropic effects.

While Delta-8 is found in small amounts marijuana, along with other cannabinoids, the chemical in marijuana that is most closely associated with getting “high” is another cannabinoid, Delta-9.

While Delta-8 does not inherently carry the same potency as Delta-9, it was the manufacturing process that created the original confusion around the legality of the product.

When Kansas approved the production of hemp products, the process of extracting Delta-8 from hemp was also thought to be legal.

But now the recent guidance clarifies, possessing, or selling products with THC above the 0.3 percent legal limit, in any form, is not legal in Kansas, no matter how it was manufactured.

“This is no longer just my interpretation of the law,” Anderson said in a letter to local business last week.

“On Dec. 2, the Kansas Attorney General, Derek Schmidt, issued an opinion on this very topic. His opinion was nearly identical to mine and clearly stated that these products are illegal. … That judge found that any hemp product containing THC levels exceeding 0.3 percent are illegal. Additionally, that defendant was convicted of unlawful possession of tetrahydrocannabinols, a severity level 5 drug felony.”

Within days of the letter being issued, most sellers had removed the product from their shelves in Hays, but for those that did not, Anderson warned the leniency due to the questionable legality surrounding the product has ended.

“For nearly a year now, law enforcement has been ready to take legal action against those possessing, selling, and/or distributing Delta-8 THC products — because they have a duty to enforce the law,” Anderson said.

“Until now, this office has given local businesses every opportunity to comply with the law and has operated under the premise that I could very well be interpreting the law incorrectly. Now that authorities higher than myself have weighed in, this office cannot continue to request that law enforcement in Ellis County not act.

“Ellis County law enforcement officers now have clear direction from higher authorities than this office who have determined that these products are illegal. As such, law enforcement officers in Ellis County have a legal obligation to seize these products as illegal contraband and have authority to arrest those in possession, or those who are distributing and/or selling these products.”

Anderson said, while the recent guidance completely clarifies the issue, he has warned businesses in the area for months that it was his opinion that selling Delta-8 products was a violation of the law.

“It's (their) duty to ensure that your products comply with the law,” Anderson said.

“And I kind of spelled it out for (them). I go, 'Look, we're not going to do anything right now, but probably should be hesitant.' And to my knowledge, only one place got rid of the stuff.”

Now it is the duty of law enforcement to act to stop the sale of Delta-8 or any THC product that is over the 0.3 percent limit, he said.

“Law enforcement has a duty and obligation to seize illegal contraband, and they can't just see it and look the other way and ignore it and decide not to do anything about it,” Anderson said.

“So now that that now that law enforcement has clear direction, from the attorney general, from the old county attorney, and from a judge in the 23rd Judicial District, I feel like they have an obligation to seize that stuff that they are aware that of its present.”

He said that could include search warrants and seizure of illegal contraband in those businesses that continue to violate the law.

“Any time you are in possession of illegal contraband with the intent to distribute it, it elevates the stakes,” Anderson said.

“Now, those, those felonies on the drug grid, that involve distribution are dependent upon quantity. But that's simply having possession of it with intent to distribute, even if you have just a little bit elevates the stakes from just simple possession.”

Anderson said even those that are currently in possession of any Delta-8 products should get rid of them, as even what was thought to have been a legal purchase can lead to a drug possession charge.

“From my view, we've given everyone as much cushion on this as we possibly can,” he said.

"And it's just at the point where ... now we can be pretty certain that I've been correct all along. And now we have a duty to act. We have a duty to enforce the laws.”