Since January, vape shops in northwest Georgia have received threatening letters from law enforcement. In Catoosa County, the letter came from Sheriff Gary Sisk, while stores in the three counties surrounding Catoosa received letters of the Lookout Mountain Judicial Circuit Drug Task Force (LMJCDTF), which has jurisdiction in all four counties. The task force letters were addressed to “all individuals, retailers, distributors and wholesalers”, who were advised that anyone caught “possessing and/or selling/distributing” products containing “any form of THC greater than 0 .3% … will be subject to arrest, prosecution and possible seizure of assets.”
Sisk’s letter was even more pointed: Stores were told that “a representative from the Catoosa County Sheriff’s Office” had “purchased items from your store and had them tested.” The items were found to “contain a significant sign [sic] level of Delta 9.” Sisk warned that the sheriff’s office will “continue prosecutions and seizures if these illegal items are not removed from Georgia” by April 30.
But merchants insist that their products are completely legal and that they have the documentation to prove it.
Delta-9-THC is the main psychoactive ingredient in cannabis, which creates the “high” of marijuana use. Federal law caps the amount of delta-9 in a substance at 0.3%. But loopholes in the law have led to an explosion of investment in delta-8-THC, a cannabis byproduct that can be synthesized from hemp and produces a similar, albeit less potent, reaction to delta-8-THC. 9. The 2018 Farm Bill legalized hemp derivatives, and a Georgia law passed the following year specifically mentioned “all [hemp] derivatives, extracts, cannabinoids, isomers, acids, salts and salts of isomers.” Although neither specifically mentions delta-8, it is implied in each case to be included.
For Joe King and Leigh Ann Laduke, owners of The Shoppe at Catoosa’s Fort Oglethorpe, the letter came as a shock. According to King, they have “all certificates of analysis” showing that their products contain delta-8, not delta-9. But when they asked for clarification on which items broke the law, the sheriff’s office declined to elaborate. In response to ReasonWhen asked for more information from Georgia under Georgia’s Open Records Act, Chief Deputy Kelly Holcomb also responded that the information was “exempt and protected from disclosure,” citing the exception of the law regarding “any ongoing investigation or prosecution of criminal or illegal activity”. With threats of arrest but no clarification, King and Laduke felt they had no choice but to pull all CBD products from their shelves.
Confusion over the legality of CBD and THC has persisted in recent months. In January, Patsy Austin-Gatson, the district attorney for Gwinnett County, which includes part of Atlanta, announced she would sue stores and store owners for selling delta-8 products. She said the products were ‘not legal’ and that violators would ‘face criminal penalties’ and ‘risk having their property seized and forfeited to the state’. Last month, attorneys for the law firm Pate, Johnson and Church filed a lawsuit against the State of Georgia and Austin-Gatson on behalf of two vape shops, seeking a statement that delta-8 products are not illegal under federal or state law. A judge recently granted an injunction against Austin-Gatson based on “a substantial likelihood that plaintiffs will prevail on the merits of their claims at trial,” and in recent weeks officers in Gwinnett and Madison counties have had to return delta -8 products they had seized from stores.
Tom Church, an attorney handling the case against Austin-Gatson (and who is not affiliated with Northwest Georgia stores), said Reason that while store owners like King and Laduke face an uphill battle, the law is on their side: even pending a positive outcome of the Gwinnett case, a successful prosecution would require demonstrating “criminal knowledge” that accused knowingly bought or sold an illegal substance.
the letters of the Drug Task Force warned: “Please do not rely on any representations made by individuals, retailers, distributors or wholesalers as to the legality of any product.” Sisk’s letter also cautioned: “These products are manufacturer misrepresented and contain more than what is on the label…It is your responsibility to know what you are selling and what is in it, especially when I tell you it’s a violation of Georgia law.”
In fact, according to Church, if store owners purchased products with documentation proving they were legal, they did their due diligence. Additionally, he says, the type of drug test available to most local law enforcement agencies may be able to detect THC, but often “doesn’t differentiate enough” to tell delta apart. -8 from delta-9.
But for now, store owners have little choice but to comply. Faced with the prospect of lawsuits and the potential seizure of their entire livelihood, The Shoppe treads cautiously. Laduc tells Reason that she refers to her regular customers as “patients,” people who use the store’s products to deal with “pain, anxiety, PTSD,” as well as opioid addicts and alcoholics who use infused CBD of delta-8 to help reduce their withdrawal symptoms. She worries that if the store loses money on CBD sales, its customers will lose access to the products that gave them relief.