Some area stores, including 10th St. Smoke and Vape and CBD American Shaman, are continuing to sell delta-8 products, so long as the THC content is under 0.3%.
Kansas Attorney General Derek Schmidt issued an opinion Dec. 2 that delta-8 products are only legal in Kansas if they contain less than 0.3% THC content.
Delta-8 is a version of the tetrahydrocannabinol (THC) compound derived from hemp plants. Delta-8 THC is an isomer of delta-9 THC, which is the psychoactive compound in marijuana that gets a person high. The difference between the two molecules is the location of a double bond between two carbons. Consumption of products featuring THC varieties like delta-8 can lead to a milder “high” than its federally illegal sibling, delta-9. Delta-8 products include edibles, smokables and tinctures.
The confusion concerning the law on hemp products surrounds whether the law only refers to delta-9, which the 2018 Farm Law names, or whether it includes delta-8, as well, and what products it refers to. Because of this, stores that were selling delta-8 products with more than 0.3% THC took the products off the shelves after the attorney general’s opinion.
“When they wrote the Farm Law, they left it out, it was identical and mirrored federal language, it was 0.3% delta-9 THC,” Vince Sanders, founder of CBD American Shaman, said. “What ended up getting written in the law was 0.3% THC, so the attorney general’s opinion is 0.3% THC means all THC, delta-8, 9, 10, 11, all THC can’t be over 0.3%.”
Junction City dealt with the opinion by putting out a cease-and-desist letter to local stores to stop selling delta-8 products.
“With the Attorney General’s Opinion as guidance, the City sees Delta-8 THC as a Schedule I controlled substance. Therefore, it is unlawful to possess or sell any product containing Delta-8 THC,” the letter signed by City Attorney Britain Stites reads. Later in the letter it states, “Hemp products, unless noted above, do not fall on Schedule I as long as THC is no more than 0.3%,” leaving people confused as to whether the City is telling them they cannot sell any delta-8 products in Junction City, no matter the level of THC.
One store in Junction City, 10th St. Smoke and Vape, decided to continue selling delta-8 products with THC content less than 0.3%, and the owners, Ben and Wendy Puett, attain Certificates of Analysis to prove the products’ legality.
By sending samples of products to a third-party lab, the products are tested for THC levels, and they receive a Certificate of Analysis that shows that the levels are under the amount considered legal by the law and the attorney general’s opinion.
“You got to have that on everything,” Ben Puett said. “I won’t have anything that I don’t have a test on. I’m doing the best I can do to be honest and legal.”
When they first got the cease-and-desist letter from the city, Ben Puett said they did take all their delta-8 products off the shelf. Then they got ahold of Sean Picket, an attorney out of Kansas City’s Sean W. Pickett & Associates law firm and the counsel for CBD American Shaman. Picket called the city attorney’s office, but did not get a response, so after a week of attempts at reaching him, the Puetts put it back on the shelves.
If they are questioned in the future, they can provide the analyses to prove the legality, he said.
Owners of Junction City stores such as Rex’s Smoke Shop and JC Smoke Shop related that they took all delta-8 products off their shelves under threat of prosecution. Because of this, the stores have lost income.
Richard Rexrode, owner of Rex’s Smoke Shop said sales have been down 40-50% since taking the delta-8 products off the shelves. He said he does not agree with the attorney general’s opinion, but he couldn’t afford to fight a legal battle if he were to continue to sell the products.
JC Smoke Shop Owner Rohan Patel said the store suffers a loss of about $1,000 a day from not being able to sell delta-8 products anymore. He said he is not sure why Junction City will not allow its sale when other places in Kansas continue to sell it.
Tobacco Road Manager Jennifer Quentin said the store didn’t sell enough of delta-8 products to worry about it too much, but she said people still call the store to ask whether it has delta-8 products.
Sanders, founder of CBD American Shaman, which has a store in Manhattan, said they ensure their products are legal by lab-testing the products they sell for THC content. He said the store locations will continue to sell the products, as he is personally confident that all the products they sell are legal through this method.
Manhattan CBD American Shaman store owner Donald Ince said he’s had a lot of customers coming in from Junction City seeking delta-8 products since December.
Sanders said CBD American Shaman started selling delta-8 products about a year ago in March 2021. He said they were slow to the market because they were concerned about legality. After consulting with attorneys who specialized in the field, he said they were 100% confident that it was legal, so they moved forward.
“It’s one thing for us to put ourselves at risk. It’s another thing with several hundred franchisees, to put them at risk, so anything we do has to be thoroughly vetted,” he said.
At the time, a store in Junction City was under the franchise, but the store closed last year prior to the attorney general’s opinion.
Sanders said after the attorney general’s opinion letter, the company stopped selling products over 0.3% THC because they weren’t interested in fighting the opinion, but they still have plenty of products to sell under the 0.3% limit, and they can prove the products are under the limit by analyzing them.
“We’ve offered the attorney general, all the prosecutors, KBI, anyone who’d care to listen, that they were welcome to see the samples or free to stop by any of our stores and pick up stuff at random … send it out and have it tested,” he said. “If they know the size of the company and the way we operate, they know we’re not doing anything illegitimate.”
He said no one has taken them up on that offer and they have not had any issues so far.