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Delta-8 legal in Kentucky following temporary injunction, but for how long?

The temporary injunction stops police and the KDA from taking action against Delta-8 processors and distributors, but SB 170 could override it.

LOUISVILLE, Ky. — A temporary injunction filed late Monday considers Delta-8 to be legal in Kentucky. The legality of the hemp-derived product has sparked debate for more than a year between distributors in the Commonwealth and the Kentucky Department of Agriculture.

In a lengthy order, Boone County Circuit Court Judge Richard Brueggemann ultimately sided with the Kentucky Hemp Association, after a hearing was held in December 2021. 

"I honestly cried tears of joy," said 502-HEMP owner, Dee Dee Taylor. "It means that that woman who is suffering with breast cancer will no longer have to be in fear of taking these products and she can get the relief she needs, it means that PTSD veteran that's been suffering for years because of all the medications he's been on, that he can use these products."

Taylor says it has helped her customers with pain, seizures, PTSD and other issues.    

Delta-8 is commonly sold as an edible or oil, but in flower-form, it resembles marijuana. It's a form of THC found in the cannabis plant, but it derives hemp, unlike Delta-9, which derives from marijuana. 

"I've known all along that these products were legal and I knew I was doing the right thing by offering these products to customers and people that needed these products," said Taylor.

Advocates argue it's protected by the 2018 Farm Bill, which legalizes hemp-derived substances as long as they contain less than .3% of Delta-9 THC, the main psychoactive element in cannabis.

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The Kentucky Department of Agriculture (KDA) sent a letter to license holders a day before 4-20, on April 19, 2021, warning growers and processors that distributing Delta-8 is illegal, and could lead to expulsion from the Hemp Licensing Program, as well as criminal prosecution. After the letter was released, stores selling Delta-8 were also raided and had to hand over the product. 

The KDA argues Delta-8 is a psychoactive, synthetic drug because it's produced by a chemical reaction and is considered a controlled substance by the Drug Enforcement Administration (DEA). Delta-8 may result in a milder high than Delta-9 THC, but the KDA argues it's otherwise similar, as well as unregulated. 

Judge Brueggemann recognized concerns from the KDA about Delta-8 but referred to current legislation when making the decision. 

The injunction said, in part "...if only natural hemp, (unadulterated by any chemical) is worthy of exemption, then Congress, and the General Assembly, could have made their statutes say so. They did not. Likewise, if the extraction or production of derivatives using non-hemp solvents should have remained a controlled substance, then the legislators could have, by statute, said so. They did not. Nor did the legislative body choose to limit Delta-8 concentrations as it did with Delta-9. Again, they could have but did not."

The temporary injunction stands until a final decision from the court that's scheduled for late April, but Taylor's victory could be even more short-lived than that. 

On Tuesday, the KDA sat in front of Kentucky's Senate Committee on Agriculture and argued in favor of Senate Bill 170. 

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"We respectfully disagree with the court's opinion," KDA legal counsel Joe Bilby said, referring to the injunction filed less than 24 hours before. 

He addressed the Committee on SB 170, which would define Delta-8 as a synthetic tetrahydrocannabinol, and ban all intoxicating, hemp-derived products from being processed and distributed. 

"Is this stuff legal or not? We believe Senate Bill 170 would resolve this ambiguity and resolve this question once and for all," said Bilby.

The Kentucky Hemp Association also spoke to the committee about the loss of jobs a ban like this could cause, as well as their willingness to regulate Delta-8 by requiring customers to be 21 or older and a certificate of analysis for products being sold. 

The Senate Committee on Agriculture ultimately passed SB 170, but until it's signed by the Governor, the temporary injunction remains in effect. 

"That's never what hemp was intended to be. Never was it intended, when I did Senate Bill 50, or in Congress via the Farm Bill, to be a hallucinogenic product," said Senator Paul Hornback, who sponsors the bill. 

Taylor said the fight is not over and hopes to prevail against SB 170. 

SB 170 passed the Senate with a vote of 23-13. It will head to the House floor next.

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