New Legal Status of Delta-8 in the Bluegrass State
New Legal Status of Delta-8 in the Bluegrass State
As previously discussed on this blog here, on April 19, 2021, the Kentucky Department of Agriculture (KDA) issued a guidance document regarding the legal status of delta-8 THC under Kentucky law (Guidance). The Guidance pointed out that the federal Drug Enforcement Administration (DEA) states that delta-8 THC and other forms of THC are Schedule I controlled substances. Additionally, the KDA asserted in its Guidance that due to the fact delta-8 THC is unlawful on the federal level and because Kentucky state law made no exception for delta-8 THC, it must be unlawful on the state level.
Followers of Kentucky hemp law and followers of the rapidly evolving regulatory landscape surrounding novel cannabinoids, including delta-8 THC, are likely aware that on June 15, 2021, Kentucky state troopers raided two lawful hemp retail stores in Morehead, Kentucky. During this raid, law enforcement confiscated a wide variety of hemp-derived products and charged the store employees with trafficking.
In response to this egregious display of power, on July 13, 2021, the Kentucky Hemp Association and two other plaintiffs filed suit and named Ryan Quarles, the Commissioner of the KDA, as well as Colonel Phillip Burnett, Jr., the Commissioner of the Kentucky State Police (KSP) as defendants in the case. As part of its demand for relief the plaintiffs sought an injunction against the defendants from enforcing the prohibitions set forth in the Guidance. The hearing on the injunction was held on December 16, 2021. On Monday, February 28, the judge in the matter issued an order granting the temporary injunction. Specifically, the judge ordered:
“That Defendant, Hon. Ryan Quarles, in his official capacity as Commissioner of the Kentucky Department of Agriculture, as well as its officers and agents are, during the pendency of this case, ENJOINED from instituting or continuing any license revocation or other adverse action against licensees on the basis of legally compliant Hemp (the plant Cannabis sativa L. with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis), as well as any part of that plant that is compliant (that has a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis), including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not provided none of those materials have a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis; this includes any products that contain delta-8 tetrahydrocannabinol unless it contains more than 0.3 percent delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” For reference, the judge made a similar order against Colonel Burnett and the KSP.
As a result of the temporary injunction being issued, neither the KDA nor the KSP can enforce the prohibitions against delta-8 THC as set forth in the Guidance. It is important to note, however, that while this allows businesses (and individuals) to possess and sell delta-8 products this is temporary and will be in effect until the lawsuit is finalized. A full copy of the judge’s order can be found below.
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However, the fate of delta-8 in Kentucky may still be decided legislatively. The Kentucky legislature is currently considering Senate Bill 170 (SB 170), which would make it unlawful to possess or to convert a hemp-derived cannabinoid into an intoxicating substance, including delta-8, delta-10, tetrahydrocannabinol-O (THCO), tetrahydrocannabinol-P (THCP) or hexahydrocannabinol (HHC). As previously mentioned, SB 170 is still a bill, but if passed it would have the force of law. For this reason, if you value the ability to manufacture and possess the cannabinoids mentioned above, contact your elected representatives to share your concern.
Finally, this blog post would not be possible without the tireless work of attorneys Christopher Wiest and Thomas Burns, the plaintiff’s attorneys in the matter against the KDA and KSP. Thank you both Mr. Wiest and Mr. Burns for sharing your insight and opinions on this matter, as well as for the wonderful work you did.
March 7, 2022
This article was written by Kight Law attorney Philip Snow. Kight Law represents hemp businesses in the US and throughout the world. To schedule a consultation with Philip, please click here and mention this article.
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