Derby police cracking down on Delta 8, but is it legal?

WICHITA, Kan. (KWCH) - Is Delta 8 legal or illegal to possess in Kansas? The answer depends on where you live.

The Derby Police Department says if a product contains THC it’s illegal in their city.

A post they shared on social media last week is getting a lot of people talking about THC and Delta 8.

The Derby Police Department shared a photo on Facebook saying officers had found THC vapes during a traffic stop.

“If something contains THC under the law that Kansas has at the moment, THC is illegal,” said Deputy Chief Brandon Russell.

He said according to the city prosecutor, THC is not allowed in Derby.

“If they have something that says THC, and they’re in the City of Derby, and they end up dealing with the Derby Police Department, we’re going to take that as, it is illegal, under the state law. It would happen very similarly to what happened here. The stuff would be submitted for testing. According to those test results, it’s what comes out as far as the actual prosecution of it,” said Deputy Chief Russell.

12 News showed the post to Lucas Fitch, operations manager for CBD Plus in northeast Wichita. He said his shop doesn’t carry the brand shown in the picture.

“But I’m sure some other stores might be carrying it because I’ve had a bunch of customers ask about it,” said Fitch. “Like I said, as long as they can find it legally in a shop and show them where they bought it, the cops really don’t have a case in my opinion.”

Fitch said his store isn’t hiding the fact that his shop doesn’t sell products made with hemp-derived THC.

“Still all legal. Like I said, the only cannabinoid that is technically illegal is Delta 9 THC. But as far as Delta 8, THC-P, THC-A, anything like that, that is still legal by the 2018 federal farm bill, so that’s just what we’re taking advantage of,” said Fitch.

Back in Derby, the deputy chief advises Kansans to be aware of enforcement that may differ from city to city.

“Get the legal opinions of what is and isn’t being done specifically where they live. you need to be aware of what the law is, and again, just because something’s not enforced, doesn’t mean it’s not a law,” said Russell.

Derby police say that in this specific incident, the person was not arrested but was cited and will have to show up in court. What charges that person faces will depend on the lab results from the vape pen.

12 News reached out to the Wichita Police Department on how it handles Delta 8. The police department issued the following statement:

“On December 2, 2021, the Kansas Attorney General, Derek Schmidt, issued his formal opinion that Delta-8 tetrahydrocannabinol (Delta-8 THC) products are illegal to possess or sell in Kansas if they contain greater than 0.3% tetrahydrocannabinols (THC). Also, Delta-8 products can only be produced from industrial hemp and cannot come from potent cannabis plants. Lab analysis has indicated that multiple Delta-8 products purchased from businesses in Wichita contain a THC level significantly higher than 0.3%. Many of these items were advertised as having a THC level under the 0.3%, but lab analysis has shown that was not the case. The Wichita Police Department would like to educate and warn businesses that selling marijuana and Delta-8 products with a THC level greater than 0.3% is illegal to do so in Kansas, and criminal cases could be referred for prosecution if illegal sales continue. The Wichita Police Department would like business owners, managers, and employees to contact the Wichita Police Department to turn over their stock of illegal substances without fear of prosecution. However, if illegal sales of marijuana and Delta-8 products with a THC level greater than 0.3% continue, cases could be referred for prosecution. Businesses can call the Wichita Police Department Special Investigations Bureau at 316-268-4171 for questions.”

On Thursday, the Sedgwick County District Attorney’s Office issued the following statement:

In December 2021, the Attorney General’s Office issued legal opinion No. 2021-4 in response to inquiries from several jurisdictions about the legality of a cannabinoid commonly referred to “Delta-8″ or “Delta-8 THC,” which was being sold across Kansas, including Sedgwick County. AGO 2021-004 (ks.gov)

In that opinion, the Attorney General found and clarified that Delta-8 THC is a Schedule I controlled substance as it contains more than .3% total tetrahydrocannabinols (THC). In response to media inquiries at that time, our office acknowledged the Attorney General’s Opinion and encouraged those who possess or distribute such substances to read and consider it before continuing to engage in such practices. As is generally the case, until local law enforcement investigates and presents a potential criminal case to our office for its review, we were not in a position to pursue prosecution for violations of this or any other law.

We are aware that local law enforcement will be engaging in efforts to further educate the community on the potential criminal liability for the possession or distribution of “Delta-8″ or similar substances with an elevated, impermissible level of THC content. We appreciate and add our voice to that effort. We recognize it is confusing to consumers to have businesses publicly marketing substances that are legally prohibited. It is our hope that businesses and others who advertise, market, or sell “Delta-8″ or other controlled substances will take this opportunity to stop and conform to the laws of our state. For those who persist in the possession or distribution of these prohibited substances, they should understand, as we do, that local law enforcement will be investigating and ultimately presenting our office with evidence of such crimes. At that time, we will review those cases and file charges when appropriate under the laws of the State of Kansas.

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