We have written several previous articles focusing on the legality of the sale in Nebraska of products containing Delta-8 tetrahydrocannabinol (“Delta-8 THC”). In the past, we have noted that there have been no enforcement actions by any governmental agency regarding these products. However, on August 14, 2023, it was reported that several dispensaries in Sarpy County and Lancaster County had certain products and documents seized by law enforcement agencies. A press release from the Lincoln Police Department stated that, based on independent testing of products purchased earlier this year, certain dispensaries were selling “statutorily prohibited substances.” In addition, a Sarpy County Sheriff’s Office press release stated that certain products it tested earlier in the year contained products with THC levels in excess of 15%. As of now, we understand no criminal charges have been filed.
As a refresher, under the Nebraska Hemp Farming Act (the “Nebraska Hemp Act”), hemp is legal in Nebraska and removed from the Nebraska Controlled Substances Act (the “CSA”). Hemp is defined as “the plant Cannabis sativa L. and any part of such plant, including the viable seeds of such plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol (“Delta-9 THC”) concentration of not more than 0.3 % on a dry weight basis” (emphasis added).
A legal argument can be made that if hemp derivative products (such as those containing Delta-8 THC) do not contain Delta-9 THC in excess of 0.3% they are classified as hemp, and not illegal substances under the CSA. Based on the information we have now, it’s unclear whether the products seized contained Delta-9 THC or Delta-8 THC. If the latter, under the Nebraska Hemp Act, the THC quantity should have no bearing on the legality of the products.
We will continue to follow this story and provide updates as they become available. In the meantime, hemp product retailers should take all measures to ensure their products are legal under the Nebraska Hemp Act. If you have any questions about Delta-8 THC or other cannabis issues, attorneys at Erickson | Sederstrom can assist you. Attorneys Shay Garvin or Andrew Collins can be reached at (402) 397-2200.