Kansas Businesses Warned Selling Some Vapes, Gummies Considered Illegal Amid Confusing Law

Businesses across Kansas have been warned that selling certain vapes, gummies and other products could land them in legal trouble because of a confusing series of updates to the state's hemp laws.

The main concern is products made with delta-8 THC, a cousin of the delta-9 THC chemical in marijuana, are sold in the state and marketed as legal, even where marijuana is illegal, because delta-8 is synthesized from CBD, the popular chemical that comes from hemp which Congress legalized in 2018.

Several legal developments over the past year sparked by the spiking popularity of the delta-8 products have left some businesses wondering if they're allowed to sell them legally.

Kelly Rippel, cofounder of Kansas for Hemp, told the Associated Press that the amendment to the state's hemp act which took effect last April was made to make more hemp products like delta-8 legal.

However, the language in the law combined with recent court rulings and a decision from the state attorney general has also left local and state officials unsure of the legality of the products.

"I do not doubt that you and likely many others feel as though marijuana and/or hemp products should be decriminalized or legalized in some fashion," Ellis County prosecutor Robert Anderson wrote in a letter to businesses last week. "My obligation to the Ellis County attorney is to enforce the laws as they are written."

Kansas, THC, CBD, Gummies, Vape, Legality
Gummies containing CBD (Cannabidiol) are seen in a shop in the Paris area on June 14, 2018. Kansas businesses and legal officials are confused as to which THC products are legal as changes to the law over the last year and rulings from judges and the Kansas attorney general have caused confusion over the legality. Geoffroy Van Der Hasselt/AFP via Getty Images

In the Hays area in western Kansas, Anderson sent the letter last week to 15 different businesses warning them that selling the products can open them up to criminal liability, and said those who want substantive legislative change should contact their representative.

Rippel, who serves on the Kansas Department of Agriculture's Hemp Advisory Board, insists that they remain legal. He said there are different types of THC and delta-8 is not considered a controlled substance. He said state labs, however, don't have the capability to tell whether the THC in a product comes from delta-8 as opposed to an illegal marijuana plant.

"We need some clear parameters from the Legislature on this," he said. "Because prohibition hasn't worked; we know that."

The attorney general opinion states that cigarettes, teas, flour and vapes are illegal regardless of the level of THC.

But Rippel said other products, including gummies and topicals, are legal so long as they contain no more than .3 percent total THC.

Anderson said in an interview that the issue is that many products being sold contain far higher levels of THC.

A judge in Ellis County also weighed in on December 22, finding that delta-8 products are illegal. The ruling stemmed from a charge of unlawful possession with intent to distribute that Anderson filed in August against a man accused of burglarizing a businesses that was hawking delta-8 products and then selling what he allegedly stole.

Anderson said the man's attorney filed a motion to dismiss on the grounds that the product was legal, but the judge disagreed.

"It kind of creeped its way into every county across Kansas," he said of delta-8. "And so now we're just stuck in this strange spot all throughout Kansas where there's going to be hundreds, if not thousands, of businesses who sell this stuff and they're arguably selling it illegally as if they're like a common drug dealer. And in certain counties, they may get treated that way."

He said another concern is that people could unwittingly get in trouble if they are arrested on unrelated charges and law enforcement runs a field test that detects THC in their system. He said the tests can't distinguish between whether the THC comes from marijuana or hemp.

The Kansas Bureau of Investigation, which requested the attorney general opinion, hasn't conducted enforcement operations, nor sent notice letters to anyone believed to be selling delta-8 products, said agency spokesperson Melissa Underwood. She said hoped that the opinion provides clarity.

After Anderson first raised concerns last year, Shaun Musil stopped selling chocolates and gummies containing delta-8 THC at the Paisley Pear wine bar, bistro and shop that he and his wife run in downtown Hays. He said he still has about $300 worth of the unsold product.

"We're probably getting ready to destroy it because it's just not worth it," he said, adding that he never used it personally. "I personally think eventually, maybe I'm wrong, but eventually, it will probably be legal in Kansas."

The Associated Press contributed to this report.

Vaping Pens
Delta-8 sales may land businesses in trouble over the question of its legality. In this April 16, 2019 file photo, a researcher holds vape pens in a laboratory in Portland, Ore. Craig Mitchelldyer, File/AP Photo