NICK GOSNELL
Hutch Post
HUTCHINSON, Kan. — Reno County District Attorney Tom Stanton sent a letter in October to businesses in Reno County that sell products that may or may not contain THC. Stanton provided Hutch Post a copy of that letter. It is quoted below.
It has come to my attention that businesses in Reno County may be marketing or selling products containing tetrahydrocannabinol (THC) in violation of Kansas law.
K.S.A. 2-3908(a) defines several hemp products that are per se illegal to manufacture, market, sell, or distribute by any person in the state of Kansas. Those products include the following: cigarettes containing industrial hemp; cigars containing industrial hemp; chew, dip or other smokeless material containing industrial hemp; teas containing industrial hemp; liquids, solids or gasses containing industrial hemp for use in vaporizing devices; and other generally defined products. To be clear, this includes any vape cartridge containing any amount of THC. I have included a copy of the statute with this letter.
This letter is intended to be a reminder to those businesses or private individuals that the manufacture, marketing, sale, or distribution of these items is unlawful and that anyone violating the statute is subject to prosecution under the statute. The Reno County District Attorney's Office will prosecute any business or individual found to be selling these items in contravention of the statute.
It is the responsibility of any person attempting to manufacture, market, sell or distribute any item containing THC to be aware of the restrictions placed on these activities in relation to industrial hemp. K.S.A. 2-3908(b) also restricts these activities as to other products unless the person engaging in the manufacture, marketing, sale, or distribution of the listed items is properly licensed under Kansas law.
Any business or person violating subsection (b) of the statute will also be prosecuted.
Finally, the Kansas Attorney General issued a legal opinion in December 2021 regarding the legality the distribution of a cannabinoid known as "Delta-8" or "Delta-8 THC" in Kansas. That Attorney General's opinion can be found at AGO 2021-004 (ks.gov). In that opinion, the Kansas Attorney General determined that Delta-8 THC is a schedule one controlled substance and is unlawful to possess or sell in the state of Kansas. The only exception to this determination is when the product containing the Delta-8 THC is (1) made from industrial hemp, and (2) if made from industrial hemp, it must contain no more than 0.3% total tetrahydrocannabinols. Any product containing Delta-8 THC that does not fit this definition is per se illegal, and the manufacture, marketing, sale, distribution, or possession of such a product is illegal under the Kansas uniform controlled substances act, K.S.A. 21-5701, et seq. Violation of the provisions of these statutes will subject the business or person committing the violations to criminal prosecution.
The relevant statute is below.
2-3908. Unlawful hemp products; penalties; exceptions. (a) (1) It shall be unlawful for any of the following hemp products to be manufactured, marketed, sold or distributed by any person in the state of Kansas:
(A) Cigarettes containing industrial hemp;
(B) cigars containing industrial hemp;
(C) chew, dip or other smokeless material containing industrial hemp;
(D) teas containing industrial hemp;
(E) liquids, solids or gases containing industrial hemp for use in vaporizing devices; and
(F) any other hemp product intended for human or animal consumption containing any ingredient derived from industrial hemp that is prohibited pursuant to the Kansas food, drug and cosmetic act, K.S.A. 65-636 et seq., and amendments thereto, and the commercial feeding stuffs act, K.S.A. 2-1001 et seq., and amendments thereto. This subparagraph shall not otherwise prohibit the use of any such ingredient, including cannabidiol oil, in such hemp products.
(2) As used in this subsection:
(A) "Human or animal consumption" means:
(i) Ingested orally; or
(ii) applied by any means such that an ingredient derived from industrial hemp enters the human or animal body.
(B) "Intended for human or animal consumption" means:
(i) Designed by the manufacturer for human or animal consumption;
(ii) marketed for human or animal consumption; or
(iii) distributed with the intent that it be used for human or animal consumption.
(b) (1) It shall be unlawful for any of the following hemp products to be marketed, sold or distributed to any person in Kansas who is not registered as a hemp processor pursuant to K.S.A. 2-3907, and amendments thereto, or who does not possess a license by the Kansas department of agriculture under any commercial plan established pursuant to K.S.A. 2-3906, and amendments thereto, or the research program established pursuant to K.S.A. 2-3902, and amendments thereto:
(A) Industrial hemp buds;
(B) ground industrial hemp floral material;
(C) ground industrial hemp leaf material; or
(D) any extract from industrial hemp with a delta-9 tetrahydrocannabinol concentration greater than 0.3% that will be further processed.
(2) No license or registration shall be required for the transport of hemp products described in paragraph (1) if such products are transported between hemp producers and hemp processors or between more than one hemp processor. Any such transportation of hemp products shall be subject to rules and regulations promulgated by the state fire marshal pursuant to this act.
(c) (1) Upon a first conviction for a violation of subsection (a), a person shall be guilty of a class B nonperson misdemeanor.
(2) Upon a second conviction for a violation of subsection (a), a person shall be guilty of a class A nonperson misdemeanor.
(3) Upon a third conviction for a violation of subsection (a), a person shall be guilty of lrvrl 5 drug felony.
(14) Upon a first conviction for a violation of this subsection (b), a person shall be guilty of a class A nonperson misdemeanor.
(25) On a second or subsequent conviction for a violation of this subsection (b), a person shall be guilty of a severity level 9, nonperson felony.
(6) Violations of subsection (b) are exempted from prosecution under K.S.A. 5705 and/or K.S.A. 21-5706 and amendments thereto and shall not be considered identical offenses will as to any crime pursuant to K.S.A. 21-5701, et seq. for purposes of sentencing.
(d) Nothing in this section shall prohibit:
(1) The use of any hemp product for research purposes by a state educational institution or affiliated entity; or
(2) the production, use or sale of any hemp product that is otherwise not prohibited by state or federal law.
(e) This section shall be a part of and supplemental to the commercial industrial hemp act, K.S.A. 2-3901 et seq., and amendments thereto.
History: L. 2019, ch. 37, § 5; L. 2021, ch. 76, § 6; April 29.
Stanton told Hutch Post in a telephone conversation that his intent is simply to make everyone aware of the statute. He just wants all businesses selling vape products or other potential delivery systems for THC to be on a level and statutorily compliant playing field.