What's going on with the Missouri marijuana recall? Here's what's been happening in court

Correction: A previous version of this article misidentified who made claims that Delta Extraction was engaging in inversion. Andrew Mullins, director of the MoCann Trade Association, informed the Missouri Department of Health and Senior Services' Division of Cannabis Regulation that inversion might be happening in Missouri. The anonymous source's report alleged that Delta Extraction was engaging in inversion.

On Aug. 14, the Missouri Department of Health and Senior Services' Division of Cannabis Regulation issued a recall for Delta Extraction's marijuana products, following the Aug. 2 revocation of the Robertsville, Missouri-based facility's manufacturer's license.

Over 62,000 retail products containing cannabis concentrate from Delta Extraction have been recalled. Recently, a judge denied a temporary restraining order the company requested in an attempt to block the state's license suspension and recall.

Here's what to know about the situation.

Why did Missouri issue a recall?

According to court documents, the DCR issued an order of immediate suspension on Aug. 2 for Delta Extraction due to a "credible and imminent threat to public health" when it sourced untested "marijuana or converted hemp" from outside Missouri.

In June, DCR received a report from Andrew Mullins, director of the MoCann Trade Association, that a practice called "inversion" might be happening in Missouri. Inversion is where illegal marijuana products from out of state are added to a facility's products in order to bolster production numbers. DCR also received a report from a source that wished to remain anonymous alleging that Delta Extraction was engaging in inversion.

Article XIV of the state constitution requires that all marijuana sold in Missouri be cultivated in Missouri, and all marijuana-infused products sold in Missouri to be manufactured in Missouri.

More: Here's what to know about DHSS' recall of 60,000+ marijuana products

An investigation by the DCR, according to court records, also found "pervasive irregularities" in the state tracking system "such that DCR cannot confirm any product originating from Delta Extraction has been compliantly tested."

After the Aug. 2 notice, the DCR also conducted a site visit at a Delta Extraction facility. According to court records, the company violated additional state regulations by failing to maintain security cameras capable of being accessed remotely by DHSS at all times. A later visit to obtain video security footage was delayed due to an incident in which security equipment that maintained video recordings at the facility was reported stolen.

Delta Extraction appealed the decision to suspend its license and recall products to the Administrative Hearing Commission, and also filed for a temporary restraining order in Cole County Circuit Court.

Did Delta Extraction break the law?

That's a difficult question to answer.

During an Administrative Hearing Commission hearing, Delta Extraction revealed it was using industrial hemp to manufacture products, including THC-A, some of which it obtained from out of state.

The state says that the company engaged in inversion by using out-of-state products, but Delta Extraction says it was bringing in industrial hemp, which is a federally legal substance.

Missouri's state statute does not include industrial hemp, or products made from industrial hemp, in the definition of marijuana.

A state regulation that took effect July 30 added THC-A to the list of products that must be derived from marijuana cultivated in Missouri. Delta Extraction said in an administrative hearing that it has since complied with that regulation, though before July 30 it did obtain some THC-A from out of state.

What is the difference between hemp and marijuana?

The difference between hemp and marijuana comes down to the amount of THC, the substance that causes a high, in the plant. Hemp is any part of the cannabis sativa plant with no more than 0.3% THC, according to the Centers for Disease Control and Prevention. Hemp has more of the compound CBD than marijuana, a non-psychoactive compound found in both marijuana and weed.

Why is it a big deal that the THC Delta Extraction used was made from hemp?

With heat, acid or solvents, CBD can be converted to THC, like delta-8 or delta-9 THC. The 2018 Farm Bill removed hemp from the Federal Controlled Substances Act, and opened the door for hemp-derived THC.

Missouri does not regulate hemp or hemp-derived THC and labs that test products for safety don't automatically look for certain chemicals or solvents, according to reporting from the Missouri Independent. The conversion process could involve chemicals like propane, ethanol or sulfuric acid.

More: 'Serious health risks': Industry experts warn of contaminants in marijuana alternative delta-8

“We don’t know if it’s safe because … we’re not actually looking for the solvent that was used,” Anthony David, owner and chief operating officer of Green Precision Analytics, told the Missouri Independent. “Because we only look for the solvents that the state tells us to look for. They tell us to look for like 25 different residual solvents, but the stuff that they use to do isomeric conversion, we don’t look for.”

There are also concerns about the safety of hemp-derived THC, such as delta-8. A 2021 study in the American Chemical Society's journal Chemical Research in Toxicology found lead, mercury and silicon in an analysis of 27 e-cigarette products from 10 brands.

Why did Delta Extraction seek a review?

Delta Extraction sought a temporary restraining order to prevent DHSS from continuing the recall and from continuing to suspend their license.

In court records, Delta Extraction alleges that the order of immediate suspension did not identify what the threat was or how they may eliminate it. It also alleges that the Division of Cannabis Regulation was aware of the company using industrial hemp to make some of its products and had never raised issues before.

Why did the judge dismiss the temporary restraining order?

Cole County Circuit Court Judge Cotton Walker dismissed Delta Extraction's temporary restraining order, and the case. In his motion, he started that Delta Extraction had not exhausted administrative remedies, since the appeal before the Administrative Hearing Commission had not been fully litigated.

According to reporting from the Missouri Independent, the Administrative Hearing Commission's decision on the appeal is still pending and there will be a hearing on Sept. 29.

What next?

The AHC hearing on Sept. 29 is likely not the end of Delta Extraction's legal battles. The company's marijuana concentrate, or distillate, was sold to other marijuana manufacturers and used in a variety of edibles and other products — products that, due to the recall, are now sitting in storage in dispensaries across Missouri.

Dark Horse Medicinals of Missouri LLC is suing Delta Extraction for damages, accusing the company of selling it concentrated cannabis oil, that "may be unusable in the State of Missouri," according to court documents. In May, Dark Horse bought about $325,000 of distillate that it did not know was partially derived from hemp and made about $1 million worth of products, which now cannot be used due to the recall.

Dark Horse isn't the only company that purchased product from Delta Extraction. According to reporting from the Missouri Independent, Old Route 66 Wellness CEO John Lopez bought a small amount of distillate in April to use in his Bison Infused products. Lopez now has $800,000 of product he can't sell and told the Missouri Independent that they “would have never bought it” if they had known it was chemically converted THC from hemp.

Susan Szuch is the health and public policy reporter for the Springfield News-Leader. Follow her on X, formerly known as Twitter, at @szuchsm. Story idea? Email her at sszuch@gannett.com.

This article originally appeared on Springfield News-Leader: Here's the latest on the Delta Extraction marijuana recall in Missouri