Attorney general's office asks court to dismiss the suit.
A Kansas hemp retailer is suing state officials over what he says was an illegal raid and seizure of delta-8 THC products. The state’s attorney general has asked the court to dismiss the suit.
Murray Dines’ Topeka hemp shop, Guardian MMJ, was raided April 20. According to Dines, Topeka police damaged property in the store and seized over $120,000 worth of product, cash and supplies.
Dines filed a lawsuit June 24 against Kansas Attorney General Derek Schmidt and Gov. Laura Kelly, saying the enforcement actions were in violation of the Farm Act and asking the court, in essence, to reverse the AG's opinion calling delta-8 illegal.
In December 2021, the AG’s office issued an opinion calling delta-8 THC “unlawful to possess or sell” beyond trace concentrations of 0.3%. In the suit, Dines argues that the opinion is based on a misinterpretation of hemp laws.
Dines argues that the products at Guardian MMJ were legal under federal law because they didn’t contain enough delta-9 THC to be considered controlled substances. They were delta-8 products derived from hemp, containing less than 0.3% delta-9 THC.
Quick background: Delta-9 THC is the most well-known and naturally abundant form of THC. Delta-8 has a similar chemical structure and psychotropic effect, though it’s reportedly milder. Delta-8 occurs naturally in trace amounts, but the the compound in retail products is made by converting CBD to THC in a laboratory process.
According to information in Dines’ complaint, the warrant executed by the Topeka Police Department claimed products in his store tested positive for THC. But the accompanying affidavit didn’t identify the specific type or isomer of THC, or the percentage concentrations.
Like federal law, Kansas law defines hemp as cannabis with “a delta-9 tetrahydrocannabinol concentration of not more than 0.3% on a dry weight basis.” Unlike federal law, the state’s definition for “hemp products” limits any form of THC to a concentration of 0.3% or less.
Unlike federal law, the state’s definition for “hemp products” limits any form of THC to a concentration of 0.3% or less.
Dines’ lawyers argue that the federal 2018 Farm Act bars states from changing the definition of hemp, and that Kansas’ own laws require the state to administer the law in the least restrictive way possible under federal law.
“Despite the clear congressional directive that a state cannot alter the definition of ‘hemp,’ and the Kansas Hemp Act’s requirement to conduct the law in the least restrictive manner allowed under federal law,” the suit reads, “Kansas law enforcement officials, including Defendants, apply the Kansas statute’s different definition of ‘industrial hemp’ as an excuse to criminalize hemp products with more than 0.3% delta-8 THC under state law by defining ‘hemp’ and ‘hemp products’ in a more restrictive manner than is allowed under federal law.”
The defendants responded July 8 by asking the court to dismiss the suit. The AG's office argues that Dines has failed to state a legitimate claim. And, they argue, if the court does find the claim plausible, the suit should be put on hold until after the state's potential prosecution of Dines for possession and sale of delta-8 has concluded.
The defendants asked the court to dismiss the suit July 8, arguing that Dines failed to state a legitimate claim.
“Plaintiff’s lawsuit should be dismissed for failure to state a claim,” the AG’s office wrote in a memorandum on the motion to dismiss. “The Supremacy Clause is not the source of any federal rights and does not create a cause of action. And there is no cause of action to support a 42 U.S.A. § 1983 claim in the 2018 Farm Bill. But, even if a plausible claim has been stated, the action should be stayed under the Pullman abstention doctrine.”
