A popular product that can be found at CBD and hemp stores across Wisconsin is now at the center of controversy after a law enforcement raid two weeks ago in Waukesha County.
Dozens of CBD stores and even gas stations in the Milwaukee area told TMJ4 News that their top-selling product is called Delta 8 THC. Store owners said the product that can be smoked, vaped, or ingested has a psychoactive component similar to marijuana, but it’s less potent. Delta 8 THC’s legality depends on who you ask.
"This is just the cartridge, it’s called ice cream cake,” said Alexander Thompson.
Thompson said it was an easy decision for him to transition from purchasing marijuana illegally on the black market to buying a similar product called Delta 8 THC from his favorite CBD store on Milwaukee’s south side.
"Wisconsin still doesn't have legalized cannabis and I kind of got to a point in my life where, ‘do I want to risk going to jail over a plant?' And the answer is just simply 'no,’” Thompson said.
But that’s exactly where Chris S. wound up after his CBD store was raided two weeks ago in Menomonee Falls.
The Waukesha County Sheriff’s Office said it confiscated all the Delta 8 THC inside Superstar Buds after a customer’s kids unintentionally ingested the product. The sheriff’s office said the children reportedly overdosed on the product requiring a trip to the hospital.
Chris said he was arrested and is now facing potential felony charges because the sheriff’s office claims those products tested over the legal limit for Delta 9 THC.
The difference between Delta 8 and Delta 9 THC is important to understand.
Delta 8 can be derived from hemp whereas Delta 9 is mainly derived from marijuana. State and federal law both ban products sold with more than .3 percent of Delta 9 THC.
Chris believes that since he’s a part of the state’s hemp pilot program, law enforcement shouldn’t have a role in regulation.
"We're protected by the program under the rules of the program that if we have something that tests over the limit, the Department of Agriculture hemp program is to that point, they're supposed to contact us and give us a chance to remove the product off the shelves and remedy the issue,” he said.
Zach Rowe owns Hazy Dayz in Milwaukee.
“[Delta 8] is a naturally occurring cannabinoid that is found in the cannabis plant,” he said. “It's found in both hemp and marijuana usually below percentages around 1 percent or less."
Rowe said he started selling Delta 8 last summer and the product now makes up 70 percent of his sales. He doesn’t deny that it can produce a high.
"Depending on the dosage it can definitely have a psychoactive effect,” he said.
Republican lawmaker Adam Neylon of Pewaukee said that makes Delta 8 illegal, but he admits it is confusing.
"These are legitimate business owners and I think the issue is just a misunderstanding of the law,” Representative Neylon said. “I think we should do a better job of informing them and educating them on what's legal and what's not legal."
Wisconsin’s Department of Agriculture, Trade and Consumer Protection, which oversees the state’s hemp pilot program, is still grappling with whether the product is legal.
"Right now, it doesn't feel like we can go and get a black and white answer on this,” said Brian Kuhn.
Kuhn is DATCP’s plant industry director. He said the state’s Department of Justice told him Delta 8 is technically legal as long as it isn’t chemically manufactured.
"Their feedback to us it that Delta 8 by itself isn't illegal. It really, their focal point is that synthesis,” Kuhn said.
Kuhn said DATCP is now waiting for a final ruling from the Drug Enforcement Agency on the product’s legality. For now, Kuhn urges CBD store owners who sell the product to have an attorney help them determine whether the Delta 8 they’re selling could put them in legal jeopardy.
“I certainly hope it would get them looking very specifically at what they're doing, what they're selling, thinking about that terminology, 'synthesized,’” Kuhn said.
The CBD store owner who was arrested in Menomonee Falls for allegedly selling illegal products told TMJ4 News he hasn’t been charged with any crimes yet. However, he’s been told the Waukesha County District Attorney’s office has up to a year to make that decision.