He owns Wall’s Organics, a retailer of delta-8 and other hemp-derived products that, until this year, had encountered “no problems” legally.
That was until August 4, when Evansville Police Officer Nathan Hassler entered one of Wall’s four stores and told him to get such products off his shelves in 10 days — or face arrest on charges of selling marijuana.
And Hassler handed him a document: an advisory opinion from the state’s chief legal officer.
When Indiana Attorney General Todd Rokita issued the opinion in January this year declaring that the products are illegal, law enforcement around the state took note — and some members of the industry promptly filed suit.
Wall is among them.
“It’s killing our business,” he told the Capital Chronicle.
Delta-8 and the other products accounted for 90% of sales, and since mid-August, he’s dropped from $2,000 days to $300 days. Now, he’s facing staff layoffs, store closures and angry customers — some of whom, he said, are returning to more dangerous substances.
Manufacturer and distributor 3Chi and the Midwest Hemp Council originally filed suit on June 26 against Rokita’s Office and the State of Indiana, in the U.S. District court for the Southern District of Indiana. Wall joined in an amended complaint filed August 16, which also added several local law enforcement defendants.
Opinion issued
Hemp-derived products have for years occupied a legal gray area, the 14-page stack of paper Hassler brought to Wall’s store reads. And it offers a definitive interpretation.
Rokita opined that Indiana law designates all natural and synthetic forms of tetrahydrocannabinol — the major psychoactive component in the cannabis plant — as Schedule I controlled substances. That designation means a substance has no accepted medical use but does have a high potential for abuse.
That’s although, on the federal level, such hemp-derived substances are generally considered legal and unregulated — as long as they are below 0.3% delta-9 THC. Above that, hemp or hemp products are considered banned marijuana.
Following 2018’s federal Farm Bill, which removed hemp from the definition of marijuana, Indiana legalized the industrial hemp industry. And the state used the same 0.3% delta-9 THC cutoff in legalizing “low THC hemp extract” products.
“Indiana law does make exceptions for hemp and hemp products, as well as low THC hemp extracts, but delta-8 THC does not appear to fall into any of these named exceptions, either,” Rokita’s office wrote. It said Indiana’s list of Schedule I substances “applies to all cannabis plants” and “clearly includes derivatives” with similar chemical structures and effects.
“The plain language of the statute and the legislative history indicate a clear intent to declassify hemp so it could be used for agricultural purposes, not ‘as a backdoor way to legalize THC,'” the office continued.
The opinion was a direct response to a request by Indiana State Police Executive Director Doug Carter and Indiana Prosecuting Attorneys Council (IPAC) Executive Director Chris Naylor.
The document explicitly says, “The OAG cannot opine on the charging or prosecution of individual cases and defers to the prosecuting attorneys and law enforcement officers for those decisions.”
Spokespeople for the entities didn’t provide comment. IPAC noted it hadn’t provided guidance to counties, but said each was aware of the opinion.
Some take action
Law enforcement and prosecutors were reading Rokita’s opinion — and acting on it.
“I am writing to inform you that if you continue to possess and/or sell these products, you … could be charged with dealing in a controlled substance,” reads a letter from Wayne County Prosecutor Michael Shipman to Low Bob’s Tobacco, in an exhibit for the lawsuit. Shipman’s office didn’t return a request for comment.
“We are aware of ongoing civil litigation regarding the legal status of certain THC products and look forward to more clarity in the future,” wrote Huntington Police Chief Cory R. Boxell. “For now, we are requesting that our local businesses cease all purchase, sale, and possession of any substance containing THC, with the exception of strictly delta-9 products with a concentration below 0.3%.”
Source: indianapublicmedia.org
Photo Credit: gettyimages-tinnakorn-jorruang
Categories: Indiana, Government & Policy