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Nebraska Delta-8 THC and CBD Retailers Beware On the heels of the boom in cannabidiol (“CBD”) sales, many Nebraska CBD retailers have recently been marketing and selling products containing As state officials begin clarifying its legality, hemp-derived delta-8 THC remains permitted in Nebraska. OUR Articles While it is legal for the University of Nebraska and Nebraska Medicine to possess cannabidiol ( also known as CBD), possession by anyone not participating in the medical

Nebraska Delta-8 THC and CBD Retailers Beware

On the heels of the boom in cannabidiol (“CBD”) sales, many Nebraska CBD retailers have recently been marketing and selling products containing Delta-8 tetrahydrocannabinol (“Delta-8 THC”), which is an isomer of Delta-9 tetrahydrocannabinol (“Delta-9 THC”). Delta-9 THC is the common compound in marijuana that provides euphoric effects to it users. Marijuana plants and other products containing Delta-9 THC in concentrations high enough to provide users with any such effects are generally illegal under federal and Nebraska law. Delta-8 THC provides a euphoric effect similar to Delta-9 THC, but milder, and due to a loophole in the federal and Nebraska law, as further discussed below, products containing Delta-8 THC are arguably legal in Nebraska and many other states.

The Delta-8 THC market was born when producers began looking for ways to turn extra CBD extracted from hemp into something else profitable. Using a chemical synthetization process, they were able to produce Delta-8 THC from CBD, and incorporate Delta-8 THC into products that could be marketed as a legal recreational drug in many states.

Under the Nebraska Hemp Farming Act (the “Nebraska Hemp Act”), “Hemp” is legal in Nebraska and removed from the Nebraska Controlled Substances Act. 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 concentration of not more than 0.3 % on a dry weight basis” (emphasis added) . Thus, as long hemp derivative products (such as CBD and Delta-8 THC) do not contain Delta-9 THC in excess of 0.3%, a plain reading of the statute indicates that Delta-8 THC and products containing Delta-8 THC would be classified as Hemp, and are legal in Nebraska. Many other states have similar industrial hemp statutes that purport to make Delta-8 THC products legal in the same manner.

Under the federal 2018 Farm Bill (the “Farm Bill”), “Hemp” was removed from the federal Controlled Substances Act. In addition, under the Farm Bill, the definition of Hemp is the same as it is under the Nebraska Hemp Act, meaning that Delta-8 THC products that do not contain Delta-9 THC in excess of 0.3% are legal under federal law.

However, despite the purported legality of Delta-8 THC under Nebraska and federal law, Nebraska retailers face a myriad of risks. In 2020, the Drug Enforcement Agency (“DEA”) issued an Interim Final Rule that stated, in part, that “all synthetically derived tetrahydrocannabinols [regardless of THC content] remain schedule I controlled substances.” There is some debate over whether Delta-8 THC is “synthetically derived,” but there appears to be a conflict between this DEA Rule and the Farm Bill. In any event, Delta-8 THC retailers face risk of DEA enforcement for the possession, distribution, or transportation of products containing Delta-8 THC. In addition, the Food and Drug Administration (“FDA”) retains authority to regulate products that contain cannabis or cannabis derivatives under the federal Food, Drug and Cosmetic Act. Currently, Delta-8 THC products do not appear to be prohibited by FDA regulations. However, the FDA recently issued a consumer update warning of the dangers of Delta-8 THC products, including contamination concerns from potentially unsafe manufacturing methods. Thus, Delta-8 retailers also risk that the FDA may take steps to ban or more tightly regulate these products.

At the state level, the tide appears to be shifting, as more states are closing the legal loophole that purports to make Delta-8 THC legal under laws similar to the Nebraska Hemp Act. For example, Colorado (which allows recreational marijuana use) has banned Delta-8 THC since May 2021, and Texas recently did the same in October 2021. As of the date of this article, sixteen other states have restricted or banned Delta-8 THC. In Nebraska, Governor Rickett’s office has generally taken a negative position towards cannabis and its derivative products, and Governor Ricketts recently asked the state Attorney General to review the legality of Delta-8 THC. Recall that prior to the enactment of the Nebraska Hemp Act, certain Nebraska sellers of CBD products were raided and charged with criminal drug trafficking offenses. The Nebraska Supreme Court eventually found in favor of the sellers, but only after years of the defendants expending extensive legal fees. Nebraska Delta-8 THC retailers could face a similar situation.

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There is also the risk that Delta-8 THC retailers may inadvertently possess and/or sell products containing Delta-9 THC in amounts greater than 0.3%, in which event they would be subject to potential felonies under the Nebraska Controlled Substances Act. Thus, such retailers are advised to take as many steps as possible to confirm that its Delta-8 THC products fall within the definition of Hemp under Nebraska law, and don’t contain Delta-9 THC in amounts greater than 0.3%.

Persons considering entering the Delta-8 THC market should carefully consider these risks, and be prepared to handle the effects of a Delta-8 THC ban or restriction under Nebraska or federal law. 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 (402) 397-2200.

Is Delta-8 Legal in Nebraska?

Delta-8 remains legal in Nebraska while state officials attempt to clarify its legality.

Hemp-derived delta-8 is legal in Nebraska, but state officials are currently reviewing its legality. Currently, the use, possession, sale, distribution, purchase, and production of delta-8 products are permitted under state law without risk of penalty or prosecution. However, with nearly 20 US states now restricting or banning delta-8 following pressure from the federal government and the DEA, we expect delta-8’s legality in Nebraska hangs in the balance. Pair this with a staunch anti-cannabis state governor and delta-8’s future doesn’t look promising.

Is delta-8 currently legal in Nebraska?

  • Delta-8 is legal in Nebraska under state and federal law. The use, possession, sale, distribution, purchase, and production of delta-8 products are permitted without fear of penalty or prosecution.
  • However, while law enforcement are not seeking to make arrests over delta-8 possession, state officials are currently reviewing delta-8’s legality.
  • Other THC isomers, including delta-10, HHC, and THC-O, are also legal under state law, as is hemp-derived CBD.
  • Medical cannabis and recreational marijuana are illegal under state law, despite multiple attempts to legalize them.

Is delta-8 THC legal in Nebraska?

Yes, delta-8 THC is legal in Nebraska under state and federal law, but state officials are still attempting to determine its legality. One such state official is a notorious anti-cannabis governor with a lot of influence on state decisions and proceedings.

According to news reports, Nebraska State Governor Pete Ricketts, who famously stated marijuana legalization would contribute to the killing of kids, requested State Attorney General Doug Peterson to review if delta-8 falls under the state’s definition of marijuana. Marijuana is an illegal controlled substance under Nebraska’s Controlled Substances Act.

If Peterson concludes that delta-8 is an illegal controlled substance, the use, possession, sale, purchase, distribution, and production of delta-8 products in the state will most likely be prohibited under state law.

However, according to recent news reports, ​​Lincoln-Lancaster County Narcotics Task Force LPD Captain Ryan Dale believes delta-8 isn’t a problem in Nebraska and won’t arrest anyone in possession of delta-8 products, stating:

“I don’t know that I would characterize [delta-8] as an issue. To my knowledge, they’re not doing anything illegal.”

For Dale, the biggest issue is differentiating between delta-8 and marijuana, an illegal controlled substance carrying more than the federally legal 0.3% THC. To protect delta-8 users from law enforcement, he recommends taking some precautions:

There’s no legal requirement for how you carry the Delta-8 products, but I would recommend that people keep them in their original packaging and then maybe even keep the receipt with it. It won’t be seized if all signs point to it being delta-8.

Ryan Dale, Narcotics Task Force LPD Captain

Legislative history of delta-8 in Nebraska

Currently, delta-8 THC derived from hemp plants carrying no more than 0.3% THC (by dry weight) is legal following the passing of the Nebraska Hemp Farming Act (LB 657). This bill coincides with the federal Agriculture Improvement Act (2018 Farm Bill), which legalizes hemp production, hemp cultivation, and hemp-derived compounds, including delta-8.

The Nebraska Hemp Farming Act defines hemp as a variety of Cannabis sativa, including viable seeds and all cannabinoids, derivatives, extracts, salts, and acids, with no more than 0.3% THC on a dry weight basis. Delta-8 is a cannabinoid in hemp and a derivative of delta-9, meaning it’s currently legal under state law.

Meanwhile, Chapter 28 of Nebraska’s Uniform Controlled Substances Act classifies all marijuana-derived tetrahydrocannabinols as controlled substances, including delta-1 cis or trans tetrahydrocannabinol, delta-6 cis or trans tetrahydrocannabinol, and delta 3,4 cis or trans tetrahydrocannabinol. It does not list hemp-derived tetrahydrocannabinols, nor does it mention delta-8 in any capacity.

Buying delta-8 in Nebraska?

Since hemp-derived delta-8 is currently permitted in Nebraska, you can purchase delta-8 products online and through physical retail stores located all throughout the state, but mostly in Lincoln. Many of these online and physical stores sell delta-8 oils, delta-8 gummies, delta-8 flower, and delta-8 vape cartridges.

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To legally purchase, use, and possess delta-8 vape products in Nebraska, you must be above the age of 21, as outlined in the Nebraska PACT Act, signed into law on June 30, 2010.

We always recommend buying delta-8 products online. Not only is it convenient, but it’s also an easy way to see if the products you’re purchasing are safe, transparent, and high-quality firsthand.

If you’re not in close proximity to a physical retail store and you’re struggling to find the best online delta-8 vendor, our list of the best delta-8 brands will steer you in the right direction.

Can you travel to Nebraska with delta-8?

Yes, you can travel into Nebraska with delta-8, provided it’s sourced from hemp plants carrying no more than 0.3% THC. Likewise, the hemp-derived delta-8 product(s) in your possession should contain no more than 0.3% THC. If the THC quantity is higher, it’s classified as marijuana-derived. Marijuana and marijuana-derived products are prohibited under state and federal law.

As a general rule, do not cross any US state border with marijuana or marijuana-derived delta-8 in your possession. All marijuana products are federally controlled substances and every state border is governed by the federal government. Traveling from one US state to another with delta-8 in your possession is a federal crime. Depending on the quantity in your possession, you could be prosecuted for trafficking an illegal substance.

Is marijuana legal in Nebraska?

No, recreational cannabis is illegal, and there is no program allowing patients access to medical cannabis.

However, the state decriminalized simple cannabis possession after a controversial voter ballot initiative in 2018, sparing offenders jail time if caught with less than 1 oz of cannabis.

A new initiative to legalize medical cannabis in Nebraska could appear on the state ballot next year if enough signatures are gathered before the July 7, 2022, deadline.

Medical marijuana

Medical marijuana is not legal in Nebraska. The state has no medical cannabis program, despite attempts to establish one. The legal status of medical cannabis in Nebraska means the use, possession, sale, distribution, purchase, cultivation, and production of cannabis for medicinal purposes are prohibited under state law.

In 2015, Bellevue Sen. Tommy Garret introduced Legislature Bill 643 (Cannabis Compassion and Care Act) to the unicameral state legislature. The bill sought to legalize medical cannabis for qualifying patients suffering from serious illnesses, including HIV/AIDS, cancer, glaucoma, and hepatitis C. The bill was blocked and eventually died after a Senate filibuster in 2016.

In 2019, Nebraska State Attorney General Douglas J. Peterson argued passing a medical marijuana bill would be unconstitutional and in direct conflict with the federal Controlled Substances Act:

“Creating a state regulatory scheme that would affirmatively facilitate the cultivation, processing, wholesale distribution, and retail sale of federal contraband [medical cannabis] on an industrial scale would frustrate and conflict with the purpose and intent of the CSA. Accordingly, we conclude that the MCA would be preempted by the CSA and would be, therefore, unconstitutional.”

A pair of voter initiatives are attempting to make their way to Nebraska’s 2022 ballot seeking to legalize the sale, production, and distribution of medical cannabis and protect qualifying patients from legal consequences.

Unfortunately, the new 2022 medical cannabis voter initiative is receiving staunch opposition. The Republican governor of Nebraska, Pete Ricketts, is partnering with a leading cannabis prohibitionist group to create TV ads opposing the initiatives, urging voters not to approve medical marijuana legalization.

Recreational marijuana

Like medical cannabis, recreational marijuana is also illegal in Nebraska. However, simple possession of cannabis in small quantities is decriminalized.

First-time offenders caught possessing less than 1 oz of cannabis will not face prison time or have it marked on their criminal record. The state considers simple possession an infraction.

Second and third-time cannabis possession offenses are misdemeanors punishable by up to 5 and 7 days in prison, respectively. Fines of up to $500 might also be handed out.

On July 1, 2021, Senator Justin Wayne of Omaha introduced Nebraska Legislature Resolution 2 (LR2CA), a constitutional amendment that would place recreational cannabis legalization for adults aged 21+ on the 2022 ballot. The amendment bill is currently in the committee stage.

Can you purchase delta-10 THC, THC-O, or HHC in Nebraska?

Yes, you can buy delta-10, THC-O, and HHC products in Nebraska. All three are not listed as controlled substances under the state’s Uniform Controlled Substances Act, meaning their use, possession, sale, distribution, purchase, and production are legal under state law with no risk of penalty or prosecution.

Is CBD legal in Nebraska?

Yes, CBD is legal in Nebraska under state and federal law, provided it’s sourced from federally compliant hemp plants carrying no more than 0.3% THC. The legal status of hemp-derived CBD means the use, possession, sale, distribution, purchase, production, and manufacture of hemp CBD products are permitted within the state without fear of penalty or prosecution.

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Nebraska legalized the production, cultivation, handling, and transport of hemp and hemp products on May 30, 2019, following the Nebraska Hemp Farming Act (Legal Bill 657), signed into law by Governor Pete Ricketts. The state later implemented the Nebraska Hemp Plan, assigning complete control of hemp production and cultivation to the Nebraska Department of Agriculture (NDA) in 2020.

This law defines hemp as a variety of Cannabis sativa, including the viable seeds of such plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, carrying no more than 0.3% THC (by dry weight).

Previously, Nebraska heavily regulated CBD. The state only allowed the University of Nebraska and Nebraska Medicine access to CBD for research and to create a small pilot program after Legislature Bill 390 in 2014.

This bill gave Nebraska medical patients with intractable epilepsy an opportunity to obtain low-THC CBD products in the form of Epidiolex — the first-ever FDA-approved cannabis medication.

CBD derived from marijuana is illegal in Nebraska. The state considers all marijuana compounds as Schedule I controlled substances under its Controlled Substances Act.

Upcoming legislation

There is currently no upcoming legislation that will change the legality of delta-8 THC in Nebraska. However, since the Nebraska State Attorney General is currently reviewing delta-8’s legality in the state, we expect the introduction of new delta-8 bills in 2022.

Conclusion

Despite Nebraska’s poor history with cannabis, hemp-derived delta-8 is still legal, with no sign of law enforcement making arrests for the use, possession, sale, or production of delta-8 products. Right now, this is great news if you’re a keen delta-8 user. You can enjoy delta-8 products freely without fear of prosecution.

However, be under no illusion. State officials are not cannabis-friendly, and they certainly aren’t fond of intoxicating substances. We expect delta-8 to come under some scrutiny once the state’s attorney general finishes reviewing the legality of delta-8.

OUR Articles

While it is legal for the University of Nebraska and Nebraska Medicine to possess cannabidiol ( also known as CBD), possession by anyone not participating in the medical cannabidiol pilot study will likely be treated as if they are in possession of an illegal controlled substance.

CBD is a cannabis compound that has been studied as a new drug, taken as treatment for conditions such as anxiety, Parkinson’s disease and multiple sclerosis. It does not have a psychoactive effect, and is often distributed as an extract in oil form. While CBD oil may have a valid medical purpose, law enforcement appears to treat it as contraband.

Earlier this year, in Washington County, law enforcement raided a Vape store which sold products containing CBD oil claiming it was a controlled substance.

One legal issue is whether CBD oil is in fact “marijuana”. According to Nebraska Revised Statute 28-401 (13) marijuana includes all parts of the genus cannabis plant, whether growing or not, and every compound, manufacture, or derivative of such plant or its seeds. However, this does not include mature stalks of the plant, or cannabidiol contained in a drug product approved by the FDA or pursuant to Nebraska revised statutes. Furthermore, Nebraska Revised Statutes section 28-405 does not list CBD oil as a controlled substance.

What is Cannabidiol?

According to Nebraska Revised Statute 28-463, cannabidiol means the processed cannabis plant extract, oil or resin that contains more than 10% CBD by weight, but no more than 3/10 of a percent tetrahydrocannabinols by weight, in either liquid or solid form.

How do I Know if it’s Illegal?

Unfortunately some people don’t know if their CBD oil is illegal until they’ve been arrested by law enforcement and the substance has been tested.

An investigation into CBD oil is similar to other narcotics investigations where the government must still prove beyond a reasonable doubt that the substance is the actual illegal substance the they claim it to be. In some cases involving narcotics, law enforcement may arrest and send a person to jail only to find out months later that the substance that was tested was not illegal.

The Target of the Investigation

It appears that vape shops are the new target of CBD investigations. Ironically, many vape shops have openly advertised the products containing CBD. In these instances, the owners believe that products containing CBD was legal and were open and upfront about the product, because they believed it was legal.

If you or a loved one has been the target of a CBD, marijuana, or other narcotic investigation, contact the aggressive experienced criminal defense attorneys at Berry Law.

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