KDA Fires the First Shot
It is a well-known fact that Kentucky has been a rich agriculture provider for the United States. So it must have seemed like a natural choice for the pilot program to excel based on the 2018 Farm Bill, which federally legalized hemp-derived products and CBD. Providing a new opportunity for revenue for small farmers, the opportunity to grow hemp seemed like a gift from heaven. However, a lack of industry regulation combined with overproduction has made the growth and distribution of this amazing product difficult in Kentucky. The industry was then given a 2nd lease on life when a “new” cannabinoid, called Delta-8, was introduced. Soon after, the Kentucky Department of Agriculture (KDA) condemned the product in a legal opinion letter. With the industry in a slump and the economy struggling to recover from the Covid epidemic, this act has been viewed as an overall war on Hemp in Kentucky.
Legal Opinion Letter
Delta-8 is a naturally occurring cannabinoid in the hemp plant that is the closest legal alternative to Delta-9 Tetrahydrocannabinol (THC) in states where Delta-9 and marijuana are not legal. Since this product is derived from hemp, it fits within the legal compass of the 2018 Farm Bill provided it contains no more than .3% Delta-9 THC on a dry weight basis. This product offers much-needed relief for consumers seeking the benefits of Delta-8, struggling retailers, and hemp farmers. However, soon after the product appeared in the Kentucky market, the KDA was quick and attempted to shut it down. In summary, their argument is that Delta-8 is an illegal substance because it is “synthetically derived”. This is where the argument begins and it’s sticky.
The KDA’s claim and opinion are on loose sand due to the complexity of defining what makes this substance synthetic. If this were a drug, the definition could be based on how the FDA defines a synthetic drug. However, this cannot be the case because outside of Delta-9 THC the FDA has not acknowledged any other cannabinoid as being a drug. In addition, the definition itself is very complicated.
The argument can also be made that Delta-8 could be derived from a conversion process from other cannabinoids. However, if the cannabinoid is already naturally occurring within the hemp plant & the conversion results in an indistinguishable result, is the product synthetic? If the answer is yes, how can the naturally derived substance be separated from what has been converted? It is also worth mentioning that the conversion of cannabinoids has been a regular practice in the industry, primarily involving the conversion of CBDA to CBD, and has never posed an issue of legal concern.
KRS 260.850 Lists “Hemp” or “industrial hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a Delta-9 tetrahydrocannabinol concentration of not more than three-tenths of one percent (0.3%) on a dry weight basis; “Hemp products” or “industrial hemp products” means products derived from. or made by, processing hemp plants or plant parts… This statute mirrors what is written in the 2018 Farm Bill.
After this announcement and opinion release, many retailers pulled products from their shelves. Customers also became fearful of purchasing the product, and there were several raids by the Kentucky State Police. As a result, sales plummeted for many retailers and a wave of discontent regarding these actions came forth. This outcry from members of the industry & consumers has resulted in a backlash, questioning the legal grounds of the actions of the KDA and the legitimacy of their claims. Soon after an injunction was filed along with a press release from the Kentucky Hemp Association (KYHA) throwing down the gauntlet to the KDA’s claims.
The Opposing Opinion
While the opinions of the KDA are noted, it is important to remember that they are exactly that, an opinion. The KDA does not have the authority to make laws in the Commonwealth of Kentucky. Additionally, the basis for the legal opinion is undefined and suspicious at best. The opinions of the KDA have met with strong opposition since it is unclear why and what their opinion is based on. This cannabinoid has shown favorable results for consumers. Those seeking a natural, safe remedy for everything from pain relief to sleep consider Delta-8 to be heaven-sent. Not only is this product good for consumers, it’s also good for the industry.
Where 502 Hemp Stands
502 Hemp only carries federally legal compliant products. Our Delta-8 is tested and all have certificates of analysis available for viewing. These will show that the Delta-9 THC is below 0.3%. Hopefully, the lawsuit will allow for Delta-8 to be produced in Kentucky and give our farmers another foothold in the industry. We are a proud member of the KYHA and support our fellow retailers, farmers and processors.