Kentucky Hemp Association Sues the State Over Delta-8 THC Raids
The Kentucky Hemp Association (KYHA) is suing the state following a number of police raids on hemp businesses thought to be selling delta-8 THC products.
The association claims that these products are legal and that the police raids were improper. According to a KYHA statement, troopers seized “a wide variety of hemp products, money, cameras, terrorized the store owners and charged their employees with trafficking” during the raids.
The KYHA has now petitioned a judge in the Boone Circuit Court to stop the police from using a previous Kentucky Department of Agriculture letter to justify the targeting of hemp products containing delta-8 THC. Kentucky Agriculture Commissioner Ryan Quarles and State Police Commissioner Phillip Burnett Jr. have been named in the suit in their role as state officials.
Hemp operators warned of potential enforcement action in April
On April 19, a letter from the state Department of Agriculture was circulated to Kentucky’s hemp license holders concerning products containing delta-8 THC.
The letter, signed by General Counsel Joe Bilby, explains that the department had received a number of inquiries from the public and other licensees about the legal status of delta-8 THC under federal and state law, and so it wished to issue a clarification.
“In response to these inquiries, I am writing this letter to advise you that 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 letter states.
The letter goes on to cite a version of the US Drug Enforcement Administration’s Controlled Substances List, which includes delta-8 THC in the “Other Names” bracket for the tetrahydrocannabinols.
According to the KYHA, this letter was shown to business owners during the police raids as justification for their occurrence. However, the KYHA does not agree with this interpretation of the law.
“So now we [have] filed a lawsuit to make clear Delta-8 products are legal in Kentucky,” Attorney Chris Wiest, who is working on behalf of the Kentucky Hemp Association, told WFPL News. “I’m sure the Department of Agriculture is going to say they are not, and I think we just need to have a judge make that decision.”
What is delta-8 THC?
To understand why these delta-8 THC products are causing so much controversy, it is important to understand what they are and how they are made.
Ordinarily, when people talk about THC, they are actually only referring to the (–)-trans enantiomer of delta-9 tetrahydrocannabinol. This is the compound that is recognized by international bodies as the main psychoactive compound in cannabis.
But delta-8 THC has a slightly different chemical structure, which changes its properties. Anecdotally, it is understood that delta-8 THC is less potent than delta-9 THC and results in a much more mellow high. Crucially, though, delta-8 THC is still psychoactive.
Delta-8 THC is only naturally present in hemp in very small quantities, which makes it rather irksome to extract the compound in a traditional manner. However, delta-8 THC can be synthesized from hemp-derived CBD in the lab. This synthesis underpins many of the delta-8 THC products that have been brought to market today; and might also be their downfall.
“The thought process is this: hemp is legal under the Farm Bill; CBD is extracted from hemp, is natural, and therefore is legal; trace levels of delta-8 THC have been observed in biomass and therefore is considered a natural product. And since delta-8 THC is naturally occurring, a derivative pathway from CBD for production is legal,” explained Dr Chris Hudalla of ProVerde Laboratories, in a keynote talk at Analytical Cannabis Expo East Online 2020.
“Now this is where I start to have concerns. One of the problems that we are seeing in the lab is that the conversion of CBD to delta-8 THC is not a natural process, meaning we don’t have direct control of it. Many of the isomers formed during this process are not naturally occurring and so there becomes both a legal question and a consumer safety issue – are these compounds that are resulting from this synthesis legal under the definition of hemp? And are they safe for consumers to be using?”
Is delta-8 THC legal?
The KYHA is arguing that delta-8 THC is a legal hemp derivative as per the 2018 Agriculture Improvement Act, which defined hemp as cannabis plants and any part of the plant “including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”
The KYHA interprets this to mean that so long as a delta-8 THC product contains less than 0.3 percent delta-9 THC, it should be considered permissible.
The Kentucky Department of Agriculture claims that they were previously assured by hemp advocates that hemp was non-intoxicating, and so they passed the state’s hemp legislation with this in mind.
“When hemp advocates first approached policymakers about legalizing hemp, they assured everyone that hemp was different from marijuana and that it was not an intoxicating substance,” Sean Southard, a spokesperson for the Kentucky Department of Agriculture, told the Lexington Herald-Leader. “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. This position is outside the mainstream, so much so that even Colorado – a state known for legalizing recreational marijuana – has banned Delta-8 THC products,” Southard added, referring to a recent decision from regulators in Colorado to outlaw the chemical conversion of naturally occurring cannabinoids in hemp.
Delta-8 THC being synthetically derived is perhaps the real crux of the matter in terms of federal law. The wording of the DEA’s new Interim Final Rule on hemp production states that “[f]or synthetically derived tetrahydrocannabinols, the concentration of delta-9 THC is not a determining factor in whether the material is a controlled substance.”
The DEA has yet to define what is meant by the wording “synthetically derived”, and whether this would extend to the synthesis of delta-8 THC from legal hemp-derived CBD. The DEA has also declined to explicitly comment on the legality of delta-8 THC at the federal level, at least until the interim final rule is finalized.
Kentucky’s state law on delta-8 THC will be the focus of the KYHA lawsuit. KYHA’s attorney Chris Wiest has said that he will ask for a temporary injunction to stop the raids on hemp businesses when the case goes before a judge in August.