MISSION, Kan. (AP) — Confusion is clouding the legality of vapes, gummies, teas and other products that include a chemical cousin of marijuana’s main intoxicating ingredient.
A recent Kansas attorney general opinion, court decision and law change have raised questions for prosecutors and law enforcement as the products, which are frequently sold in smoke shops and even gas stations, proliferate.
At issue is a chemical called delta-8 THC that is billed as producing a milder high than the better-known delta-9 THC. Delta-8 is often marketed as being legal even where marijuana is not. That argument stems from the fact that most delta-8 is synthesized from CBD, a popular non-intoxicating chemical that’s prevalent in hemp, a form of cannabis that Congress legalized in 2018.
In the Hays area in western Kansas, Ellis County prosecutor Robert Anderson sent a letter last week to 15 different businesses warning them that selling the products can open them up to criminal liability.
“I do not doubt that you and likely many others feel as though marijuana and/or hemp products should be decriminalized or legalized in some fashion,” he wrote, urging people seeking legislative change to contact their lawmakers. “My obligation to the Ellis County attorney is to enforce the laws as they are written.”
Delta-8 has rocketed to popularity over the last year, and the cannabis industry and state governments are scrambling to reckon with it amid debate over whether it’s legal. Kansas lawmakers amended the state’s hemp act last year, and the law took effect April 29.
Kelly Rippel, the cofounder of Kansans for Hemp, said the state law was intended to make more hemp products legal, such as delta-8.
But the way it was written raised questions for Anderson and the Kansas Bureau of Investigation about whether the products were now illegal.
Rippel, who serves on the Kansas Department of Agriculture’s Hemp Advisory Board, insists that they remain legal. He said there are different types of THC and delta-8 is not considered a controlled substance. He said state labs, however, don’t have the capability to tell whether the THC in a product comes from delta-8 as opposed to an illegal marijuana plant.
“We need some clear parameters from the Legislature on this,” he said. “Because prohibition hasn’t worked; we know that.”
The attorney general opinion states that cigarettes, teas, flour and vapes are illegal regardless of the level of THC.
But Rippel said other products, including gummies and topicals, are legal so long as they contain no more than .03% total THC.
Anderson said in an interview that the issue is that many products being sold contain far higher levels of THC.
A judge in Ellis County also weighed in on Dec. 22, finding that delta-8 products are illegal. The ruling stemmed from a charge of unlawful possession with intent to distribute that Anderson filed in August against a man accused of burglarizing a businesses that was hawking delta-8 products and then selling what he allegedly stole.
Anderson said the man’s attorney filed a motion to dismiss on the grounds that the product was legal, but the judge disagreed.