Columbia vape shops warned to drop delta-8, similar hemp products police say are illegal

After months of confusion and inconsistent enforcement, the Columbia Police Department says it will crack down on the sale of delta-8 and delta-10 hemp products, which are considered illegal by the South Carolina Law Enforcement Division.

Early this year, Columbia police began telling tobacco and vape stores that some of their hemp products were illegal because they contained unauthorized forms of THC (tetrahydrocannabinol), a psychoactive compound found in hemp and marijuana, The State reported in February.

Columbia Police Sgt. Lance Reeves at the time told The State the department would be cracking down on all products containing delta-8 THC. But since then, store employees at numerous shops say nothing has happened, and they’ve continued selling delta-8, delta-10 and other products.

Now, police have sent those stores a letter formally telling them to stop selling those products.

“It has been I guess loosely addressed,” said Sgt. Joe Richburg with Columbia Police Department’s Organized Crime and Narcotics Unit. “Law enforcement has a whole lot of stuff going on with other crime, staffing, etc. It’s one of those things that kind of fell to the wayside, but we’re trying to get caught up.”

Thirty-four letters were delivered either by mail or by hand to Columbia vape shops informing them they may be out of compliance with state law, according to the Columbia Police Department.

“Delta-8 THC, Delta-10 THC, and any other isomers of THC outside of the above definition per state law is an illegal substance under South Carolina Statute 44-53-370(b)(2) and is considered a Schedule I controlled substance,” the letter, first obtained by WIS News, reads.

“We are providing you this information to educate and inform you that possession of these items is in direct violation of the law, and to ensure that your business does not have any compliance-related concerns,” the letter adds.

The letter includes contact information for Richburg and says the department wants to maintain positive relationships with local businesses.

The stores that sell these products have been split on their reaction. Visits to several downtown Columbia vape shops showed that at least a handful were still selling delta-8 products as of Tuesday.

What does the law say?

Police in February told The State they were basing enforcement on an Attorney General’s opinion that declared delta-8 illegal in 2021.

“It’s not law, but it’s the guidelines we’re going to use going forward,” Reeves told The State at the time.

The police department is now saying it is codified law.

Understanding which hemp-derived products are legal to sell in South Carolina has been a source of confusion since hemp was legalized by South Carolina’s Hemp Farming Act in 2019.

Hemp can be used to make fiber, for textiles, but it can also be used for the cannabinoids, which are types of chemicals, it contains. The cannabinoid delta-8 THC naturally occurs in small amounts in both hemp and marijuana.

Part of the confusion from law enforcement has been that while THC is a controlled substance in South Carolina, the 2018 federal Farm Bill and South Carolina’s 2019 Hemp Farming Act both permit a small amount of delta-9 THC to be present in hemp.

Those laws don’t address other THC variants such as delta-8 and delta-10, both of which have grown in popularity and can give the user a sense of euphoria or sedation similar but less intense than marijuana use.

Many in the hemp industry argue that because the law does not forbid other variants of THC that can also be derived from hemp, including delta-8, it’s not illegal.

The U.S. Drug Enforcement Agency has said delta-8 derived from hemp is not a controlled substance, but synthetic delta-8 is a controlled substance. A federal court in California has agreed that hemp-derived delta-8 is legal under federal law, in part because federal statute “is silent with regard to delta-8 THC.”

But in South Carolina, law enforcement agencies were having a hard time understanding what to enforce. So in 2021, SLED asked for clarity from the state Attorney General’s Office.

To answer SLED’s question, the Attorney General’s Office issued an opinion that delta-8 is not legal under the state Hemp Farming Act, since the act only expressly allows small quantities of delta-9.

“Our office agrees with SLED’s essential analysis that the Hemp Farming Act did not legalize THC except as defined in lawful hemp,” the attorney general’s opinion reads. “If the General Assembly intended to undertake legalization of THC on the scale that the industry posits, they would have done so expressly and unambiguously.”

Richburg stressed that the Columbia Police Department isn’t making new laws, but its job is to enforce the laws passed down by the state legislature, and to follow the guidance of SLED when in doubt.

Next steps

Several downtown vape stores were still selling delta-8 products as of Tuesday. At least one store had removed the delta-8 products while a corporate lawyer analyzed the police department’s letter, a store employee confirmed.

Vape shop employees say having to remove all delta-8 and delta-10 products could bankrupt some businesses, and employees at all shops visited by The State said a large portion of sales come from customers buying delta-8 and delta-10.

Employees at these stores spoke to The State about their store operations, but declined to be named on the record.

All employees also said this isn’t new for them.

Several other South Carolina jurisdictions have taken actions in the past to try to curtail the sale of delta-8 products.

In 2021, a Lexington vape shop was shut down for selling the products.

The Columbia Police Department is not planning any immediate enforcement actions, Richburg said.

“We’re not planning on following the letter with kicking in any doors or anything. We’re going to give them time to evaluate it … and get their businesses in order,” he said.

“I’m open to communication from any of them, that’s why my phone number was on (the letter),” he added.