Kentucky Bill SB 170: The Latest Attack on Delta 8

Recently, Kentucky Senator Paul Hornback introduced Senate Bill 170 (SB 170)which proposes a ban on the production, sale, and possession of all ‘intoxicating hemp derived products’, including Delta 8, Delta 10, THC-O, THC-P, HHC, and potentially other cannabinoids as well. If passed, this law would have a tremendous impact on the hemp industry in Kentucky, and could set a precedent that would encourage legislators in other states to push similar bills.

The Fight for Legality

Though this newest bill may be alarming, Kentucky is no stranger in the fight to keep hemp products legal. The state has seen repeated attempts at regulating the hemp industry via prohibitive bills that seek to limit access to hemp products for millions of Kentuckians.

In 2017, Kentucky banned hemp flower. This includes buds, kief, pre-rolls, and other raw hemp products. The only legal hemp products available for sale within the state of Kentucky are hemp extracts or derivatives of hemp extracts, such as Delta 8. Only businesses with a hemp license (issued by the Kentucky Department of Agriculture) are allowed to handle or process hemp flower to make these extracts.

On April 19th 2021, the Kentucky Department of Agriculture released a memo which claims that Delta 8 is illegal under both federal and state law, with the explanation being that Delta 8 appears by name on the Drug Enforcement Administration’s controlled substances list. 

Despite the apparent severity of this memo, it neglects several key points of information—like how the DEA is a law enforcement agency, doesn’t actually have the authority to regulate hemp products. That falls under the purview of the United States Department of Agriculture, who maintains that “Delta 8 THC is unrelated to the 0.3% Delta 9 THC limit” imposed by federal hemp regulations.

In August of 2020, months before the memo was released, the DEA published their interim final rule regarding hemp, which states that the DEA’s controlled substances list does not supersede the 2018 Farm Bill. Essentially, this is the DEA saying that Delta 8 is legal, which brings up the interesting question as to why the Kentucky Department of Agriculture referenced the controlled substances list to begin with.

In addition to this, KRS 260.850 (which concerns the definitions of Kentucky’s industrial hemp program) makes no mention of Delta 8. It defines hemp products as “products derived from, or made by, processing hemp plants or plant parts,” and only limits delta 9 concentrations to “not more than three-tenths of one percent (0.3%) on a dry weight basis.” This shows that Delta 8 is not only federally legal, but also legal according to Kentucky law.

Nonetheless, the memo led to a series of storefront raids, prompting the Kentucky Hemp Association to take legal action. After months of deliberation, a temporary injunction was filed by Boone County Circuit Judge Richard Brueggemann. The injunction ruled in favor of the Kentucky Hemp Association, temporarily preventing police from conducting any more raids, and ensuring that Delta 8 remains functionally legal. While the injunction is only temporary, it’s likely that Judge Richard Brueggemann’s order will be upheld when court resumes in April. 

What would SB 170 do?

Unfortunately, SB 170 seeks to change everything. If signed into law, SB 170 would ban all ‘intoxicating hemp derived substances’ in the state. Delta 8 concentrations would be limited to naturally occurring trace amounts of less than 0.001%, or less than one thousandth. It would also ban Delta 10, THC-O, THC-P, HHC, and any other cannabinoid deemed to be ‘intoxicating’ by the state legislature.

Thankfully, it’s not too late. The specifics of the bill are still being worked out in the Senate, and it has yet to reach the House of Representatives or be signed by Kentucky Governor Andy Beshear. There also appears to be some possibility for compromise, though it’s unclear how such restrictions would affect online purchases. 

Regardless of this, the intended impact of this bill is quite apparent—SB 170 would prevent many Kentuckians from accessing hemp derived cannabinoids. 

How can I help?

If you live in Kentucky, you can help by calling the Legislative Message Line at 1-800-372-7181. Ask the operator to leave the following message. They will get your name and address so they can send the message to your legislators. 

“Please leave a message for my Senator and Representative, Senator Paul Hornback, Senate Agriculture Committee, and Senate Leadership. SB 170 goes too far. Please stop the war on hemp and cannabinoids. We need common sense regulations regarding adult use so the hemp industry can thrive. Please either change this bill or vote no. Thank you.”

You can also help by signing this petition to stop SB 170 from banning Delta 8 and other hemp derived cannabinoids. Together, we can help keep these cannabinoids legal.

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