Cozen O’Connor: Nebraska Attorney General Asked To Weigh In On Legality Of Delta-8

Senate Majority Leader Chuck Schumer reinvigorated the federal marijuana debate last week with the introduction of his Cannabis Administration and Opportunity Act, which seeks to de-schedule cannabis and regulate cannabis sales, possession and use in a manner that balances individual liberty with public health and safety. Already a majority of states have legalized the use of cannabis for either recreational or medicinal purposes. A critical step in the legalization process is defining what cannabis is (and isn’t). But, defining cannabis (for whatever purpose) is proving to be no easy task. If the definition is drawn too broadly, state and federal laws are criticized for their “unintended consequences”. If drawn too narrowly, law enforcement may find their hands tied either by statutory text or by the state attorney general’s interpretation.

Nebraska remains one of the few states where cannabis has been legalized only for limited hemp-farming purposes. Late last week, local media reported that Nebraska’s Governor Pete Ricketts asked his Attorney General Doug Peterson to review whether Delta-8 falls within the state’s definition of marijuana. The federal definition of marijuana does not capture Delta-8 and neither do most state definitions. Specifically, the federal 2018 Farm Bill applies to, and makes legal, hemp containing less than 0.3 percent Delta-9 THC, but the bill does not explicitly address other derivatives of hemp. Delta-8 is one of those cannabinoid derivatives, usually created in a lab. Because it does not contain Delta-9 THC, it is arguably “legal,” and has largely been unregulated at the federal and state level. Those in the industry are well aware that Delta-8 may affect the body in ways similar to Delta-9 THC, but often with less potency. That said, falling outside of the definition of marijuana means that Delta-8 is essentially an unregulated substance and as such presents a public health and safety risk. Hence, the request from Governor Ricketts.

One of the largest police departments in the state currently considers Delta-8 legal under Nebraska law, and has said they will not arrest anyone using or possessing the substance. Where will the state attorney general come out on this issue? This situation, like the situation in South Dakota we described in a previous article, highlights the state attorney general’s role in interpreting existing state laws and, just as importantly, ensuring local law enforcement acts in accordance with those laws.

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