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KY Hemp Group Sues State Over Delta-8 Ban

KY Hemp Group Sues State Over Delta-8 Ban

The fight over Delta-8 THC is heating up across the country, but in Kentucky things have reached a boiling point. 

The state of Kentucky has decided to go to war with sellers of Delta-8 THC, but the Kentucky Hemp Association (KYHA) isn’t going to take it lying down. The association, which represents hemp industry stakeholders across the state, is suing State Police Commissioner Phillip Burnett Jr. and Agriculture Commissioner Ryan Quarles in order to halt raids on legal hemp businesses selling Delta-8 THC.

In case you missed the memo, Delta-8 THC has become a hot button issue across the country over the course of the last year. Sometimes referred to as “marijuana lite,” Delta-8 is a naturally occurring cannabinoid in hemp which offers a milder high than Delta-9 THC. 

Its popularity has increased exponentially in the last couple of years, and as the CBD market has become crowded, many hemp businesses have turned to Delta-8 products to attract customers.

The glitch? Delta-8 occupies a legal grey area in the US. While the 2018 Hemp Act states that all cannabinoids and extracts present in hemp are legal, most Delta-8 on the market is created by modifying CBD in a lab. 

The emergence of Delta-8 has largely taken state lawmakers by surprise, and states are struggling to know how to deal with a psychoactive cannabinoid that is nevertheless hemp-derived.

The response to Delta-8 has varied across the country, ranging from outright bans (hello, New York State), to regulatory changes (like in Oregon). In Kentucky, a letter from Department of Agriculture General Counsel Joe Bilby informed hemp license holders that Delta-8 would be considered illegal in the state: 

“Delta-8 THC is a Schedule I controlled substance under federal law and Kentucky law; that distributing products containing this substance is illegal; and distributing such products could lead to your expulsion from the hemp licensing program as well as potential exposure to criminal prosecution.”

The non-profit group has asked a judge in Boone Circuit Court to stop law enforcement from using Department of Agriculture General Counsel Joe Bilby’s letter to justify raiding hemp businesses

When news emerged earlier this summer that Kentucky State Troopers had raided two lawful hemp retail stores in Morehead, KY, the KYHA immediately retained counsel to contest the actions (as well as the state’s legal logic) contained in the Bilby letter. 

According to the KYHA,  law enforcement took a wide variety of hemp products, money, cameras, and terrorized the store owners and charged their employees with trafficking:

“We learned that Kentucky State Police used “the Delta-8 Letter” from Joe Bilby at the Kentucky Department of Agriculture as justification for the raid. This letter…was waved in the faces of business owners as they watched their store employees being harassed and charged with criminal offenses.”  

Sean Southard, a spokesman for the agriculture department, offered a lengthy statement justifying the agency’s position: 

“When hemp advocates first approached policymakers about legalizing hemp, they assured everyone that hemp was different than marijuana and that it was not an intoxicating substance,” he said. 

“Relying upon those assurances, the Kentucky General Assembly and the United States Congress passed laws legalizing hemp by creating a definition to separate it from psychoactive forms of cannabis that puts users in an altered state. Now, some want to argue that lawmakers accidentally legalized an intoxicating synthetic substance called Delta-8 THC.”

Other hemp associations (like the national lobbying group, Hemp Roundtable) also argue that Delta-8 THC was not intended to be included in the legislation that legalized hemp and CBD, and should be regulated akin to adult-use cannabis.

That argument doesn’t wash with the Kentucky Hemp Association.  In a letter to Bilby, their counsel argues that the law is much more nuanced than the state has contended and that the wording as it stands does not place Delta-8 THC on the list of controlled substances.

The non-profit group has asked a judge in Boone Circuit Court to stop law enforcement from using Bilby’s letter to target hemp businesses. In a statement to KYHA members, the organization makes clear that they “will take this case to whatever level of government is necessary.” 

“It’s time to put this conversation to rest. Cannabis that’s high in Delta-9 THC can be easily obtained at the seat of U.S. government in Washington D.C. (as a free gift with purchase.) So why are we still fighting over Kentucky Hemp?” 

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