Kentucky judge rules delta-8 THC is legal

Kentucky judge rules delta-8 THC is legal

A Kentucky judge has ruled that delta-8 THC is a legal derivative of hemp, protecting retailers and producers in the state from raids and criminal charges.

Boone County Circuit Court Judge Richard Brueggemann issued a permanent injunction August 3 barring enforcement action against businesses that make or sell delta-8 THC products, reports Hemp Today.

"Delta-8 tetrahydrocannabinol, as a derivative of Hemp, and any products that contain Delta-8 tetrahydrocannabinol are legally compliant Hemp,” Brueggeman wrote in the ruling, “so long as the same contain a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”

Delta-8 is a chemical compound similar to the most well-known form of THC, delta-9. It can be sourced from hemp by converting CBD into THC through a laboratory process. Delta-8 also occurs naturally in cannabis, in trace amounts, and is widely considered to be technically legal because in places where hemp legislation regulates only delta-9 THC.

The Kentucky Hemp Association filed suit in July 2021 after Kentucky State Police began seizing delta-8 from stores in a series of raids, requesting the injunction to prevent further raids and seizures until state legislators clarified delta-8 policy.

“This is a huge win for farmers and retailers of hemp derivatives in the Commonwealth,” said Kentucky Hemp Association President Katie Moyer after the ruling, in an open letter to Kentucky Hemp Association members.

“This is a huge win for farmers and retailers of hemp derivatives in the Commonwealth.”

— Kentucky Hemp Association President Katie Moyer

Brueggemann had issued a temporary injunction Feb. 28 keeping delta-8 THC legal in Kentucky while the lawsuit played out.

In his February ruling, Judge Brueggemann acknowledged the ag department’s concerns about delta-8 but said his decision was based on the law as written. Brueggemann noted that the state legislature hadn’t explicitly banned delta-8 THC, and that as administrative agencies the Kentucky Department of Ag and the Kentucky State Police didn’t have authority to enforce against it.

Brueggemann’s latest decision protects delta-8 retailers and producers from charges, but wasn’t a complete win for the hemp industry. A related claim against the state’s ag department was dismissed due to a lack of standing, according to Hemp Today. The judge said none of the plaintiffs had demonstrated that the Kentucky Department of Agriculture’s actions put their license or businesses in jeopardy.

The Kentucky Hemp Association said in a press release that questions and concerns remained about how the Kentucky Department of Agriculture would approach delta-8 regulation in the future, potentially leaving hemp processors at risk of losing their licenses.

The association’s vice president, Tate Hall, added that the raids and subsequent lawsuit had diverted the organization’s attention from pursuing other goals.

“There are many important advancements that the KYHA has been working toward,” Hall said, “including opening up hemp to animal feed markets, legalizing hemp tea and microgreens, and improving the market for everyone. These delta-8 raids on retailers were an obstacle that distracted us from advancing hemp in other ways, but it was a challenge we were ready and willing to face in order to protect retailers of Kentucky Proud Hemp products.”

The association also said it’s been working with state legislators to “draft a bill that will satisfy concerns associated with unregulated Delta-8, while at the same time protecting the rights of Kentuckians to Delta-8.”