Is delta-8 legal in Kansas? Attorney general says no, but a hemp retailer is suing

A Kansas hemp retailer is taking the state’s delta-8 regulations to federal court, according to a lawsuit filed last week.

Murray Dines, owner of Terpene Distribution in Lawrence, Kansas, disagrees with the way the state is applying regulations on hemp and delta-8 products. He said that his store, which was previously located in Topeka, was unlawfully raided because of an opinion released by Kansas Attorney General Derek Schmidt in 2021.

Dines said his products meet the federal regulations for hemp, meaning they don’t contain enough THC to be considered an illegal substance. He said that his delta-8 products are derived from hemp and contain less than 0.3% delta-9 THC, which adheres to federal law.

Kansas Attorney General Derek Schmidt disagrees. In 2021, Schmidt said that vapes, cigarettes, cigars and teas that contain delta-8 THC are Schedule I controlled substances, and are therefore illegal to sell or possess in Kansas.

In an opinion, Schmidt said a similar but lesser marijuana high is produced with delta-8.

“This effect is what has made products containing Delta-8 THC popular among retailers and consumers who tout it as providing a ‘legal high.’”

Dines filed a 21-page federal lawsuit on June 24 against Schmidt and Kansas Gov. Laura Kelly.

Schmidt’s office said Thursday that it does not comment on pending litigation.

In April, police in Topeka seized over $120,000 in cash, supplies, hemp and hemp products from Dines’ store, citing the attorney general’s opinion as authority, according to court documents. Dines said the products seized by police were all derived from hemp and fall under the 0.3% THC limit.

Schmidt said in his 2021 opinion that products made from industrial hemp that contain less than 0.3% total THC are legal. Industrial hemp, as defined by Kansas law, limits hemp products to the plant itself.

Dines said this definition violates the federal Agriculture Improvement Act of 2018, which defines hemp as any part of the plant and all its derivatives that contain less than 0.3% concentration of THC.

“This limited definition of hemp was subsequently used as an excuse for one or more Defendants in this case to apply the law in a manner that criminalizes items that would be otherwise considered legal hemp products if Kansas utilized the correct definition of hemp,” Dines said in the lawsuit.

The 2018 law also expressly stops the state from restricting hemp transportation across state lines. The products that Dines sells are produced in Colorado and transported to Kansas, according to court documents.

Dines said there has been no determination under state or federal law or in state or federal court that designates delta-8 THC products as illegal — there’s only been Schmidt’s opinion. His lawsuit seeks to clarify the definition of hemp under state law and solidify the legality of his products.

While hemp and marijuana come from the same species of cannabis plant, hemp does not cause the same intoxicating effects associated with marijuana because it does not contain the same levels or types of THC. Hemp products are used by some for medicinal purposes, similar to CBD.