A judge declared Delta-8 THC derived from hemp to be legal in the Bluegrass State, although cannabis is not.
At around 11 a.m. on October 13 last year, Mike Kimzey was running his smoke shop on Preston Highway in Louisville, Kentucky when the Bullitt County Sheriff walked in with a search warrant.
“It felt like they were raiding a kingpin drug dealer,” says Kimzey, who has owned Discount Smokes, tucked between a pawn shop and Domino’s Pizza in a strip mall, for 20 years. The sheriff told him that his agents had done multiple controlled buys at the store, claimed they had smelled marijuana and expected they would find at least 10 lbs. of cannabis. “It was a deplorable situation. They read us our rights and asked where the weed was.”
But Kimzey doesn’t sell pot at Discount Smokes. Unlike the 38 states that have legalized some form of marijuana, Kentucky is stuck in the 1980s when it comes to cannabis laws. However, the state has a robust industrial hemp industry—thanks to a 2014 pilot program and the Farm Bill, which legalized hemp federally and defined it as cannabis that contains 0.3% or less of Delta-9 THC, the psychoactive component that gets you high.
Rather, Kimzey sells cigarettes, cigars, glass pipes, and gummies and vaporizers made with Delta-8 THC, a derivative extracted from hemp that is known for giving a milder, “legal high.” The Sheriff told Kimzey’s customers to get out and another officer stood by the door telling would-be customers that the store was being raided. At the end of the ordeal, the Sheriff took $619 in cash and $3,000 worth of products containing Delta-8 THC. Kimzey was hit with a felony charge for possessing with intent to distribute a controlled substance as well as a misdemeanor related to drug paraphernalia (specifically, the glass pipes for sale in his store).
Kimzey’s charges would eventually be dropped, along with the owners of 14 other stores that were raided during the Sheriff’s sting, the culmination of a months-long offensive waged by the state against Delta-8 THC.
“It was a war against hemp,” says Dee Dee Taylor, the owner of 502 Hemp, a store that sells Delta-8 and other hemp-based products in Kentucky, and a member of the Kentucky Hemp Association.
The state’s war started on April 19, 2021, with a letter from Ryan Quarles, the commissioner of the Kentucky Agriculture Department, to the state’s hemp license holders. Quarles incorrectly stated that all Delta-8 THC products are Schedule I controlled substances banned by federal and state law. He also threatened to revoke licenses and how law enforcement could pursue criminal prosecution. The Kentucky State Police then used that letter to obtain search warrants and conducted dozens of raids across the state.
But, Quarles and the State Police had it wrong. According to the Drug Enforcement Administration, Delta-8 THC is legal so long as the cannabis it was extracted from is hemp. And last week, the state officially lost its war against Delta-8. In a case filed by the Kentucky Hemp Association, a judge ruled against the state’s department of agriculture and the Kentucky State Police, writing that the police were “subjecting citizens to raids and prosecution for what is not plainly prohibited by law—but rather has been plainly authorized and exempted by law passed by the legislative body according to the Constitution.”
By Wednesday, August 10, Kentucky admitted defeat. In a statement, Kentucky Commissioner of Agriculture Ryan Quarles said that following the court’s ruling, the state’s hemp licensing program “will not take disciplinary action” against a licensee if they’re selling hemp-derived Delta-8 THC.
Kentucky is not the only state reckoning with Delta-8. Last summer, Texas state legislature introduced a bill that would’ve outlawed Delta-8 but it died while being debated in the House and Senate. About a dozen states, including Colorado, Oregon, New York and Washington, have banned hemp-derived Delta-8 and more states are considering bills to outlaw the compound.
The irony of all this is that the Farm Bill, which was focused on legalizing industrial hemp and hemp-derived products like CBD, legalized products like Delta-8. These products are not regulated by state marijuana programs and are not required to be tested and sold through cannabis dispensaries. This is why bodegas and local smoke shops sell these products legally and how states that don’t have access to legal cannabis host two markets: an illicit marijuana trade and a legal, yet-unregulated, Delta-8 industry.
“The only reason Delta-8 exists at all is because it’s a product of prohibition,” says Jim Higdon, a former journalist and author who now runs Cornbread Hemp, which sells certified-organic CBD products from Kentucky to all 50 states. “It exists because there’s a demand for Delta-9 THC, which is still restricted because of bullshit state and federal laws. It is the bathtub gin of the 2020s.”
For Kentucky’s Delta-8 retailers, the controversy helped increase consumer awareness that there is a product like marijuana but legal in their state. “Honestly, I think it just created the opposite effect of what was intended—it’s been phenomenal,” says Taylor, who sells about $50,000 worth of Delta-8 products a month from her store on Moser Road in Louisville.
For now, cannabis remains illegal in Kentucky, but it’s unlikely to stay that way. Lawmakers will soon have to reckon with public opinion: 59% of Kentuckians say they support legalizing marijuana, according to data collected between July 2019 and January 2021 by the Democracy Fund and UCLA Nationscapev. With 72% of Kentucky Democrats in favor of legalization and 50% of Kentucky Republicans on board, sooner or later, the Bluegrass State will enjoy that other kind of grass legally.