Nebraska Attorney General Files Lawsuits Over Delta-8 THC Products On Store Shelves

“We know delta-8 is a bad chemical, it’s a bad drug, and it hurts people.”

By Cindy Gonzalez, Nebraska Examiner

Pointing at what he called mislabeled and dangerous THC-containing products made to look like Nerds, Fritos and other child-enticing treats, Nebraska’s attorney general on Wednesday announced an “unprecedented” action to protect consumers.

In the culmination of a monthlong investigation, Attorney General Mike Hilgers (R) said his office filed lawsuits against retailers in at least 10 counties across the state alleging violations of consumer protection and deceptive trade practices laws.

His focus is on delta-8 products, and he said the lawsuits filed Wednesday are separate from any pending criminal investigations by area law enforcement agencies.

The 2018 Farm Bill, which opened up the hemp farming industry nationally, put a legal limit on delta-9 THC, but did not address regulation of delta-8. States have been grappling with that loophole.

Of about 100 items tested during the probe by the attorney general’s office, Hilgers said, about 15 percent were accurately and clearly labeled for ingredients and potency.

He said the synthetic process by which delta-8 is manufactured can inject harmful industrial solvents—heightening his alarm.

“It’s a game of Russian roulette that Nebraskans are losing,” said Hilgers.

At least one proprietor who was targeted, however, criticized the attorney general’s action as a “political stunt” aimed at instilling fear in Nebraskans.

“The attorney general is saying we are misleading—we are not,” said Kim Rockwell, owner of vape shops in Lincoln and Keith Counties that are being sued. He said he was “blindsided” by the accusations, which he first heard about Wednesday from reporters, and stands by his operations as legal.

Another shop owner noted that, as a retailer, she gets cannabis product from larger vendors that come with a “certification of analysis.” If the state’s testing showed a discrepancy, said Traci Wild-Smith of Greenhouse Grandma in Dawes County, “by all means, it needs to be taken off the shelf.”

However, Wild-Smith said she also had been unaware of the state’s worries, and as of Wednesday evening hadn’t gotten notice of any legal action.

The lawsuits, among other things, allege that the business model of  targeted shops including Greenhouse Grandma seeks to “entice and ultimately ensnare Nebraska’s most vulnerable consumers: teenagers and children.”

The attorney general contends that to “maximize financial gains,” the retailers mislead the public about the dangers of their THC-containing products.

During a news conference, Hilgers showed pictures of brand-name products such as Fritos and Nerds alongside look-alike products containing THC. As part of the action, the state also has sent letters to companies such as the Frito-Lay and Ferrara Candy Co.

“We presume, without your knowledge or license, your intellectual property rights are being infringed here in Nebraska,” said one letter.

The letters signed by Hilgers also invoked the upcoming Halloween trick-or-treating custom, saying that the real candy undoubtedly will be a popular choice and should be protected.

Hilgers said that as a “courtesy,” and to help the company’s enforcement effort, his office provided specific Nebraska locations at which the THC-containing products were being sold.

The attorney general also has issued consumer protection warnings to help educate parents, teachers and families about the “dangers.”

Calls to a few other dispensaries targeted by the office were not immediately answered Wednesday. A manager at Chasing Clouds Vape in Columbus, for example, referred a reporter to an owner in Norfolk, and calls there went unanswered.

A person answering the phone at the Cannabis Factory in Lincoln said that the store is not commenting to reporters due to a pending investigation.

Rockwell, who owns two First Stop Vape Shops targeted (one was previously named Botanical Dream), said he previously stopped selling a delta-8 product that resembled Fritos and has identification safeguards to ensure sales are only to adult customers. If the state had a concern, Rockwell said, he would have liked an opportunity to respond.

“They ambushed us,” said Wild-Smith, who said her Chadron store does not sell the child-attracting THC-containing treats that were showcased by Hilgers during the press conference. She said Greenhouse Grandma does sell a chocolate-covered drop in orange wrapping, but she said it contains an amount of THC that is “way under the legal limit.”

“I’m a grandma, I understand,” Wild-Smith said of adult items that are too candy-like. Of the lawsuit, she said: “I’m a little confused and a little shocked.”

Lawsuits were filed Wednesday in the Counties of Platte, Scottsbluff, Hall, Madison, Lancaster, Sarpy, Lincoln, Saline, Keith and Dawes. Typically about 30 pages long, they ask that dispensaries pay civil penalties for each violation, but Hilgers said the primary intent is to pressure the locations to get the items off the shelves.

“We know delta-8 is a bad chemical, it’s a bad drug, and it hurts people,” he said.

In the investigation, Hilgers said, adult investigators entered the stores and purchased the products, which were then tested. He said testing showed mold, acetone and other ingredients that should alarm consumers.

Hilgers said he plans to talk to state lawmakers about possible solutions, including legislation, aimed at the products containing THC (the compound in the cannabis plant most commonly associated with getting a person high).

The U.S. Food and Drug Administration said the growing concern surrounding delta-8 THC products sold in many dispensaries and vape shops is that products haven’t been approved by the FDA for safe use, and because of harmful synthetics that can be used in the production process.

The FDA said it received 104 reports of “adverse events”—including hallucinations, vomiting, anxiety and loss of consciousness—in patients who consumed delta-8 THC products between December 2020 and February 2022.

National poison control centers reportedly received nearly 2,400 exposure cases between January 2021 and March 2022, of which 8 percent resulted in admission to a critical care facility.

This story was first published by the Nebraska Examiner.

Photo courtesy of Pexels/Kindel Media.