The hemp and cannabinoid industry has expanded rapidly across the United States since the passage of the 2018 Farm Bill, and Nebraska businesses are navigating a complex and evolving legal landscape. Products containing CBD and Delta 8 THC have become commonplace in retail stores, gas stations, and specialty shops throughout the state, yet many business owners remain uncertain about what is actually permitted under Nebraska law and what risks they may be taking by stocking or selling these products.
Understanding the distinction between federally legal hemp derived cannabinoids and products that may trigger state criminal liability is not just an academic exercise. Getting it wrong can expose your business to significant legal and financial consequences, including criminal charges, license revocations, and civil liability. This guide provides an overview of the current legal framework and practical considerations for Nebraska businesses.
The Federal Framework: The 2018 Farm Bill
The 2018 Agriculture Improvement Act, commonly known as the Farm Bill, removed hemp from the federal Controlled Substances Act's definition of marijuana. Under federal law, hemp is defined as the Cannabis sativa plant and any of its derivatives, extracts, and cannabinoids that contain no more than 0.3 percent delta 9 THC on a dry weight basis. This opened the door to a legal market for CBD products derived from hemp and, by some interpretations, other cannabinoids such as Delta 8 THC.
The federal Drug Enforcement Administration has taken the position that synthetically derived tetrahydrocannabinols remain Schedule I controlled substances, and Delta 8 THC is typically produced through chemical conversion of CBD rather than being extracted directly from the hemp plant. This distinction has created significant ambiguity that varies by jurisdiction.
Nebraska's Approach to Hemp and Cannabinoids
Nebraska legalized industrial hemp cultivation in 2019 through LB 657, adopting a regulatory framework overseen by the Nebraska Department of Agriculture. The legislation aligned Nebraska with the federal definition of hemp as containing no more than 0.3 percent delta 9 THC by dry weight. However, Nebraska has been notably more conservative than many other states when it comes to the retail sale of hemp derived products, particularly those that may produce psychoactive effects.
The Nebraska Attorney General's office and law enforcement agencies have raised concerns about Delta 8 THC products, and the legal status of these products in Nebraska remains unsettled. Businesses that sell Delta 8 products face potential exposure under Nebraska's Uniform Controlled Substances Act depending on how prosecutors and courts interpret the applicable definitions.
Key Compliance Considerations for Nebraska Businesses
For businesses operating in the CBD and hemp product space in Nebraska, several compliance considerations are essential:
The hemp and cannabinoid space is one of the most rapidly changing areas of business law in Nebraska. What was compliant last year may not be compliant today, and the cost of getting it wrong can be severe. Proactive legal counsel is essential for any business in this industry.
Delta 8 THC: The Risk Profile
Delta 8 THC occupies a particularly uncertain legal space in Nebraska. While proponents argue that hemp derived Delta 8 falls within the federal definition of legal hemp derivatives, Nebraska law enforcement and prosecutors have not uniformly accepted this position. Several Nebraska businesses have faced scrutiny and enforcement actions related to Delta 8 products, and the risk of criminal exposure cannot be dismissed.
Before stocking or selling Delta 8 products, Nebraska businesses should consult with an attorney who understands the current enforcement environment and can provide a current assessment of the risk. The legal landscape can shift quickly based on new legislation, attorney general opinions, or court decisions, and a legal analysis that was accurate six months ago may be outdated today.
How Horgan Law Can Help
The business law attorneys at Horgan Law Firm work with Nebraska businesses in the hemp and cannabinoid industry to assess legal risk, develop compliance programs, review supply agreements, and respond to regulatory inquiries or enforcement actions. We stay current on developments at both the state and federal level so that our clients can make informed decisions about their business operations.
If you operate a business that sells or distributes CBD or Delta 8 products in Nebraska, or if you are considering entering this market, we encourage you to reach out for a consultation before you assume that your current practices are legally sound.
