Tri-State prosecutors threaten arrests for selling Delta 8 products

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Published: Aug. 3, 2023 at 10:43 PM CDT
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EVANSVILLE, Ind. (WFIE) - The Dubois County and Vanderburgh County prosecutors have issued warnings that Delta 8 THC products are illegal in the state of Indiana despite many questions about the compound’s legality.

On Thursday, Prosecutor Diana Moers explained to 14 News that she had law enforcement go to businesses in Vanderburgh County with a letter that threatens to arrest anyone selling Delta 8 or smokable hemp for selling a Schedule I narcotic.

“We issued an enforcement letter which was issued as a warning to say, ‘Hey,’ reminding businesses that this is the law,” she said.

However, Delta 8′s legality has been a source of contention across the country as states work out their own regulations.

Delta 8 is a form of THC that comes from the hemp plant.

It’s similar to and a little weaker than Delta 9 THC, the chemical that gets you high if you take marijuana.

In 2018, the Farm Bill was passed, and it legalized hemp and its byproducts.

Indiana has also passed legislation allowing the sale of hemp products.

Indiana does not have any law specifically prohibiting the sale of Delta 8.

Moers says based on interpretation of the laws surrounding Schedule I narcotics, Delta 8 should be considered illegal in the state. She cited an opinion from Attorney General Todd Rokita that was issued in January where he said the same thing.

“It’s a misnomer that it’s an opinion of the Attorney General personally,” Moers said. “It’s a study of the law and cites a lot of science and other things in the opinion.”

While the opinion does cite many scientific studies regarding the extraction of Delta 8 THC, the Attorney General’s website clearly states, “The Advisory Division does not make or recommend policy. Rather, it guides officials in their efforts to understand specific state statutes, policies, and procedures.”

Max Huebner, the owner of Max Vapes in Jasper explained that there are some products that are regulated because they’re synthetically derived and not a natural product of the hemp plant.

“There are some other products like HHC or THCO,” he said. “We’re not allowed to sell those products.”

He explained that Delta 8 THC-O is synthetic, while Delta 8 THC is not man-made. Moers along with Rokita’s opinion disputes that idea.

“This has always been able to be enforced because the DEA in 2020 said that these are controlled substances, these synthetic THC products,” Moers said.

That opinion by the DEA was regarding THCO products. Delta 8 THC product policies have typically been aligned with the findings of the Ninth Circuit Court. That court ruled in 2022 that Delta 8 THC is not a controlled substance.

As such, some business owners like Huebner, are continuing to carry the products.

“I’m in this for the long haul,” Huebner said. “I’m trying to do this because I know that it’s the right thing.”

The company 3Chi LLC. and the Indiana Hemp Council are trying to get a federal court injunction that would clearly define Delta 8 as legal. They’re directly challenging Rokita’s opinion and attempting to force a federal judgment.

Huebner said he would appreciate clarity.

“To operate a business and someboy comes in to tell you, ‘Hey, we have an opinion, and now we’re going to start arresting you based on an opinion,’ is confusing,” he said. “It’s scary.”

Huebner said he’s been advised by 3 Chi’s lawyers that his products are legal, but if a more clear law were to be passed, he would gladly stop selling the product.

Huebner said he’s not worried about money; he’s just disputing these letters on principle.

It’s worth noting that he says Delta 8 products make up 30% of his business.

Moers said they sent the letters out as a courtesy and as a response to what she said has been an increase in marketing for these products.

Moers’s letter reads:

Dear Business Owner,

It has come to our attention, either from a tip or perhaps your own advertising, that you have Delta 8 products and/or smokable hemp available for sale at your place of business. As a courtesy before taking any legal action, I am writing to alert you about possible prosecution after the release of an official opinion from the Attorney General, which I am attaching for your reference.

On January 12, 2023, the Attorney General’s Office issued an official opinion that Tetrahydrocannabinol Variants and Other Designer Cannabinoid products (which would include Delta 8) DOES fall under the statutory definition of a Schedule I Controlled Substance.

Therefore, I’m writing to inform you that if you continue to possess and/or sell those products, you (and/or your employees) could be charged with Dealing in a Controlled Substance under Indiana Code 35-48-4-2. Depending on the weight – that charge could be up to a Level 2 Felony which has the possibility of 10-30 years in prison.

Continuing to sell those products could also subject you to search warrants, subpoenas, forfeiture proceedings, and all other tools available under the law.

Another product you may have on your shelves is smokable hemp. It is also not legal in Indiana under I.C. 35-48-4-10.1. There is, as you may know, an exception in the law for CBD products with less than 0.3% THC. That does not, however, include anything with THC that is smokable. Additionally, CBD products are within the definition of “Low THC hemp extract” under I.C. 35-48-1-17.5, which specifically excludes the flower or bud.

Finally, I.C. 35-48-4-10(d)(3) includes a Level 5 Felony for a retailer to sell anything they knew or should have known contains more than 0.3% Delta 9 THC packaged as low THC hemp extract.

If you are selling either of those products – and continue to – you are risking legal action from law enforcement and my office. The best course of action is to immediately remove all Delta 8, Delta 9, Delta 10, Delta X (and any other designer cannabinoid products) and smokable hemp products from your shelves and do not sell or use them in the future.


Diana L. Moers

Prosecuting Attorney Vanderburgh County