COMMONWEALTH OF KENTUCKY

BOONE CIRCUIT COURT

FIRST DIVISION
CIVIL ACTION NO. 21-CI-00836
Electronically Filed

KENTUCKY HEMP ASSOCIATION; KY GIRL HEMP, PLAINTIFFS

LLC, and ROCKY RIDGE HEMP CO.

v.

HON. RYAN QUARLES AND COL. PHILLIP DEFENDANTS

BURNETT, JR., in their official capacities

RESPONSE BRIEF/MEMORANDUM IN OPPOSITION TO DEFENDANT,

COMMISSIONER BURNETT’S MOTION FOR SUMMARY JUDGMENT

Plaintiffs, through Counsel, provide this response to Defendants’ Motion for Summary

Judgment.1

I. Plaintiffs have alleged a valid claim against Commissioner Burnett

Defendant Burnett’s arguments are boiled to down to this: the KSP hasn’t raided the

particular named Plaintiffs (but did raid at least one member of the Kentucky Hemp Association

– Eastern Kentucky Hemp), does not enforce the KDA’s letter, but the KSP’s own identically

erroneous interpretation of Kentucky law, and, he claims, the products are illegal. (Motion at 1-

4). The KSP alleges that the Plaintiffs have failed to prove injury, causation and redressability.

(Motion at 5-6).

1
At the outset, summary judgment may not be appropriate. The standard articulated in Steelvest,
Inc. v. Scansteel Serv. Ctr., 807 S.W.2d 476 (Ky. 1991) is a high hurdle, and there may be some
factual issues in this matter. Thus, Plaintiffs suggest that the Court should make appropriate
findings of fact and conclusions of law and enter judgment accordingly, treating, as it indicated
on the record of hearing in December, the December hearing and subsequent briefing and
materials as a trial.
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 For a sworn law enforcement officer, Commissioner Burnett’s false statement about Ms.

Seeger’s testimony at the hearing is particularly egregious and troubling. He claims that she said

the KDA letter was the only source of her pulling product. That was not her testimony.

Rose Seeger’s Testimony

Ms. Seger testified that she is the owner of KY Girl Hemp, located in Burlington, KY,

Boone County. V.R. 12/16/21, 10:43:52. She has sold hemp products since 2018 and, in 2021,

had been selling Delta-8 products, including treetops, and butter delights, but only in her store.

Id. at 10:44:30. After the Bilby Memorandum and the KSP raids, she stopped selling the

products in the summer of 2021, and took the threat of prosecution so seriously that she

discarded $15,000 in product. Id. at 10:46:22. Ms. Seeger also confirmed that she would resume

selling these products if they were determined to be legal, and the KSP raids stopped. Id. at

10:47:16. She acknowledged that her store has taken a financial hit without the products, and

these products are available in Ohio. Id. at 10:48:00. Finally, she confirmed the business is a

member of the KHA. Id. at 10:48:29.

Colonel Rogers’ Deposition Testimony

Colonel Rogers, from the KSP, testified by deposition in this matter. He testified that

KSP has jurisdiction throughout the Commonwealth all the way from Burlington to Cynthiana

and is statutorily charged with enforcing the Commonwealth’s criminal laws. (Depo. Rogers 6-

7). Warrants were obtained and raids conducted over delta-8 products. (Id. at 17). That

includes a raid against a member of the Kentucky Hemp Association:

Q. And this warrant that incorporated Mr. Bilby's letter was presented to the Rowan
County District Court, right?

A. Yes, it appears so.

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 Q. And as a consequence of that, a search warrant was issued for the Eastern Kentucky
Hemp Company, correct?

A. Yes.

Q. And if we look and we get down to the fourth page of this exhibit, products were
seized as a consequence of all of that, right?

A. Correct.

Q. Okay. Other than the Eastern Kentucky Hemp Company, has the KSP used the Bilby
memo in any other criminal prosecutions?

A. Yes, I do believe so. (Depo. Rogers 12-13).

Colonel Rogers also testified:

Q. Okay. And so the raids against Ms. Shockey's business, I guess -- if it comes up in
the course of an investigation or somebody, it comes across their desk, KSP will take
enforcement action if it discovers Delta-8 products, right?

A. Possibly, yes. It's still in question right now. We're waiting on this litigation, but
yes.

Q. And as a result of this litigation, KSP did not dismiss any of the pending criminal
charges or discontinued its current enforcement efforts with respect to the seven investigations
you mentioned earlier, right?

A. That's correct. (Depo. Rogers 18-19).

KSP Affidavits

Kentucky State Police affidavits were filed in the record in this matter on December 15,

2021, which are highly relevant to Burnett’s standing arguments (and, as it turns out, destroys

them). Detective Justin Reynolds testified that he used the Bilby Memo to obtain search

warrants to target and raid businesses. (Affidavit Reynolds, filed 12/15/2021, ¶¶ 6-7).

Colonel Rogers testified in his affidavit that there were two open KSP cases and two

closes KSP cases against Delta-8 that relied, at least in part, on the Bilby Memorandum.

(Affidavit Rogers, filed 12/15/2021, ¶¶ 6-7). Colonel Rogers testified that the Bilby

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Memorandum was distributed by the Kentucky State Police to businesses to threaten those who

were carrying Delta-8 products. (Affidavit Rogers, filed 12/15/2021, ¶ 9). A business in

Gallatin County (in this Circuit) was threatened by the KSP and had the Bilby Memorandum

provided to them. (Affidavit Rogers, filed 12/15/2021, ¶ 10).

Tate Hall’s Testimony

Tate Hall testified at the hearing that the Kentucky Hemp Association took the threats of

criminal prosecution seriously. (V.R., 12/16/2021, V.R. at 9:35:54). He testified that KSP

obtained warrants and conducted raids for the product. Id. at 9:37:00.

Mr. Hall confirmed that while not every hemp grower or processor had an interest in

Delta-8, the biggest processors and growers did. Id. at 9:39:00. The actions of the KDA and

KSP have harmed the KHA, including their ability to raise money and obtain sponsorships for

their annual meeting. Id. at 9:40:00-9:43:00.

Let us start here: both Seger and Rocky Ridge are members of the Kentucky Hemp

Association. (V.R. 12-16-2021, Testimony Seger at 10:48:29; Ver. Compl. ¶¶ 3-4). Mr. Hall

confirmed that while not every hemp grower or processor had an interest in Delta-8, the biggest

processors and growers did. (V.R. 12-16-2021, Testimony Hall, at 9:39:00). The actions of the

KDA and KSP have harmed the KHA directly, including their ability to raise money and obtain

sponsorships for their annual meeting. Id. at 9:40:00-9:43:00.

Mr. Hall confirmed hemp processors who are members of the KHA have been harmed

due to reduced demand, including (i) Commonwealth Extracts and (ii) Farm CBD, both of which

indicated they would produce Delta-8 products but-for the actions of the KDA and KSP, and that

retail shop members have been harmed, many of whom are near border areas where customers

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can obtain Delta-8 products in Indiana, Ohio, Tennessee, West Virginia, and Illinois. Id. at

9:42:00-9:46:15.

Standing

Constitutional standing is "defined by three requirements: (1) injury, (2) causation, and

(3) redressability." Commonwealth Cabinet for Health & Fam. Servs., Dep't for Medicaid Servs.

v. Sexton ex rel. Appalachian Reg'l Healthcare, Inc., 566 S.W.3d 185, 196 (Ky. 2018). As in

Cameron, these elements are met where operation of a statute – or executive branch policy --

impairs the interests of the Plaintiff. Cameron, 2021 Ky. LEXIS 240.

In Kentucky, to have associational standing (unless, as is the case here, the Association

has been harmed in its own right), that (a) its members would otherwise have standing to sue in

their own right, and (b) the interests it seeks to protect are germane to the organization's purpose.

Bailey v. Pres. Rural Rds. of Madison County, 394 S.W.3d 350, 357 (Ky. 2011).2 For instance,

representing a majority of those with an interest in the issue is sufficient for standing. City of

Ashland v. Ashland F.O.P. #3, 888 S.W.2d 667 (Ky. 1994). And Ms. Hamilton acknowledged

that the KHA is the primary hemp business organization in the state. (V.R., 12/16/2021,

Testimony Hamilton, at 10:23:50-10:23:58). She also testified that she knows KHA and that its

members include licensees of the KDA, including processors and growers. Id. at 10:15:30.

2
There is a third requirement federally, namely that “neither the claim asserted nor the relief
requested requires the participation of the individual members in the lawsuit,” but “Kentucky has
never officially adopted this entire test.” Bailey, 394 S.W.3d 350, 356. The Kentucky Court of
Appeals has advised that this third prong should not be a deal breaker for a Court if the first two
elements are met. Interactive Gaming Council v. Commonwealth ex rel. Brown, 425 S.W.3d
107, 113-117 (Ky. App. 2014).
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 Mr. Hall also testified that the Association’s mission included promoting the hemp

industry, and that Delta-8 issues, including this lawsuit, were central and germane to the

association’s purpose. (V.R., 12/16/2021, Testimony Hall, at 9:32:15-9:34:30).

There is injury

The Kentucky Supreme Court recently expounded upon these requirements in Overstreet

v. Mayberry, 603 S.W.3d 244 (Ky. 2020). “To establish the first requirement, ‘an injury must be

concrete, particularized, and actual or imminent.” Id. at 252. “For an injury to be

'particularized,' it must affect the plaintiff in a personal and individual way.” Id. “This means

the plaintiff ‘personally has suffered some actual or threatened injury.’" Id. “For an injury to be

concrete, it must "actually exist." Id. “And while an injury may be threatened or imminent, the

concept of imminence ‘cannot be stretched beyond its purpose, which is to ensure that the

alleged injury is not too speculative for [constitutional standing] purposes—that the injury is

certainly impending." Id.

Threatened future injuries will suffice to establish standing “if the threatened injury is

certainly impending, or there is a substantial risk that the harm will occur.” Susan B. Anthony

List v. Driehaus, 573 U. S. 149, 158 (2014). A plaintiff satisfies this requirement when he

alleges "an intention to engage in a course of conduct arguably affected with a constitutional

interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder."

Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979). When a plaintiff has

engaged in a course of conduct and the state has instructed him to stop or face disciplinary

action, we may infer a threat of prosecution that is neither "chimerical," Steffel v. Thompson, 415

U.S. 452, 459, (1974) (internal quotation marks omitted), nor "imaginary or wholly speculative,"

Babbitt, 442 U.S. at 302. Under such circumstances, a plaintiff has adequately alleged a concrete

6
and imminent harm sufficient to meet the "injury in fact" requirement. Id. See, also, Reitz, 765

F.3d 601, 608.

Injury in fact is and can be found for pre-enforcement actions where: (i) there is a history

of past enforcement against the plaintiffs or others by the Defendants; (ii) enforcement warning

letters sent to the plaintiffs regarding their specific conduct; or (iii) an attribute of the challenged

statute that makes enforcement easier or more likely, such as a provision allowing any member

of the public to initiate an enforcement action. McKay v. Federspiel, 823 F.3d 862, 869-870 (6th

Cir. 2016).

Indeed, fielding and investigating complaints of activity that the enforcement body

considers illegal is sufficient to establish both a concrete injury and imminent harm, and confers

standing. Russell v. Lundergan-Grimes, 784 F.3d 1037, 1047 (6th Cir. 2015) (where the

government agent “fielded and investigated complaints” of the activity, standing was met, and a

“plaintiff need not wait until a prosecutor initiates adverse action to have standing to sue”).

Russell made clear that where “a realistic possibility the official will take legal or administrative

actions against the plaintiff's interests,” standing exists to enjoin the activity. Id. at 1048.

Moreover, "past enforcement [of a statute] against the same conduct is good evidence that the

threat of enforcement is not chimerical," Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334,

2345, 189 L. Ed. 2d 246 (2014).

Here, there is a history of past enforcement by the KSP, including both threats and raids,

against those who sell or distribute Delta-8 products. (Affidavit Rogers, filed 12/15/2021;

Affidavit Reynolds, filed 12/15/2021; Depo. Rogers at 17). Colonel Rogers likewise was clear

that if KSP came across delta-8, it would take enforcement actions. (Depo. Rogers 18-19). That

is a certainly impending harm.

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 KSP argues that Ms. Seeger’s actions in responding to its enforcement actions does not

matter, because KSP did not personally threaten her. But that has never been the test. Past

enforcement against anyone, particularly when, as is true here, the Defendant intends to take the

same action against anyone else who engages in the same activity, is sufficient to prove injury in

fact and confer standing. McKay, 823 F.3d 862 at 869-870 (explaining that past enforcement

against “others” is sufficient); Driehaus, 134 S. Ct. 2334, 2345; Russell, 784 F.3d 1037, 1048.

As to Mr. Marshall, his deposition testimony was that Rocky Ridge also sold Delta-8

products directly. (Depo. Marshall at 23-25, 27-28). These past sales, and a desire to do so in

the future, confers standing on Rocky Ridge, as well.

And finally, the Kentucky Hemp Association. One of their members was actually raided

by the Kentucky State Police – Eastern Kentucky Hemp Company. (See, also, response to

discovery by KHA, attached to Quarles MSJ). And Mr. Hall testified to the harm that the KSP

caused it. The actions of the KDA and KSP have harmed the KHA, including their ability to

raise money and obtain sponsorships for their annual meeting. (V.R. 12/16/2021, Testimony

Hall, at 9:40:00-9:43:00). Mr. Hall confirmed hemp processors who are members of the KHA

have been harmed due to reduced demand, including (i) Commonwealth Extracts and (ii) Farm

CBD, both of which indicated they would produce Delta-8 products but-for the actions of the

KDA and KSP, and that retail shop members have been harmed, many of whom are near border

areas where customers can obtain Delta-8 products in Indiana, Ohio, Tennessee, West Virginia,

and Illinois. Id. at 9:42:00-9:46:15.

Harm has been caused by the KSP

This element of standing "is not focused on whether the defendant 'caused' the plaintiff's

injury in the liability sense," Wuliger v. Mfrs. Life Ins. Co., 567 F.3d 787, 796 (6th Cir. 2009),

8
because "causation to support standing is not synonymous with causation sufficient to support a

claim." Parsons v. U.S. Dep't of Justice, 801 F.3d 701, 715 (6th Cir. 2015). Indeed, the Supreme

Court has made clear that "[p]roximate causation is not a requirement of Article III standing."

Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1391 n.6 (2014). "To that

end, the fact that an injury is indirect does not destroy standing as a matter of course." Parsons,

801 F.3d at 713; see also Warth v. Seldin, 422 U.S. 490, 504 (1975). Rather, the traceability

requirement mainly serves "to eliminate those cases in which a third party and not a party before

the court causes the injury." Am. Canoe Ass'n v. City of Louisa Water & Sewer Comm'n, 389

F.3d 536, 542 (6th Cir. 2004).

Here, there is a history of past enforcement by the KSP, including both threats and raids,

against those who sell or distribute Delta-8 products. (Affidavit Rogers, filed 12/15/2021;

Affidavit Reynolds, filed 12/15/2021; Depo. Rogers at 17). Colonel Rogers likewise was clear

that if KSP came across delta-8, it would take enforcement actions. (Depo. Rogers 18-19). That

is sufficient for causation.

In part, KSP argues that other law enforcement agencies besides the KSP might well take

enforcement against Delta-8 products, and the Plaintiffs’ interests. They may be right. In fact,

the Laurel County Sheriff, at the behest and in coordination with the Kentucky Attorney General,

took action and conducted a warrantless raid on two stores in London, Kentucky for delta-8

products, mere days before this Court issued its temporary injunction. A Fourth Amendment

lawsuit under 42 U.S.C. § 1983 is being prepared against the Sheriff and deputies who were

involved for filing in federal court. But the fact that other law enforcement agencies may engage

in illegal conduct and subject themselves to lawsuits in federal court is hardly a reason to suggest

that the Kentucky State Police are not a proper party.

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 In fact, case law is clear that where the parties before the Court are engaging in illegal or

unconstitutional action, the fact that other, unnamed parties, should have been named, or might

be involved in illegal enforcement in not grounds to withhold relief. Lavin v. Husted, 689 F.3d

543 (6th Cir. 2012). In Lavin, the Secretary of State pointed out that the local prosecutors might

bring enforcement actions under the challenged statute, as opposed to him, and thus the Plaintiffs

did not have standing. Id. But the Sixth Circuit wasn’t buying that argument, and pointed out

that enjoining the Secretary would provide meaningful relief. Id. So too here. The KSP

conducted enforcement raids, and enjoining the KSP provides these Plaintiffs meaningful relief.

The injury is redressable

Enjoining Commissioner Burnett from enforcing not only the April, 2021 Guidance

Memorandum, but also taking any additional enforcement against Delta-8 products, provides

redress to the Plaintiffs. Mr. Hall testified to as much. (V.R. 12/16/2021, Testimony Hall, at

9:46:00-9:46:50). In fact, as it turns out, “[a] restraining order granting injunctive relief against

the enforcement of a statute or ordinance is to be directed against the acts of those specific public

officials charged with enforcing the statute to enjoin their threatened enforcement.” Akers v.

Floyd County Fiscal Court, Ky., 556 S.W.2d 146 (Ky. 1977); Commonwealth v. Mountain

Truckers Ass'n, Inc., 683 S.W.2d 260, 263 (Ky. App. 1984). Defendant Burnett is just such a

person. Plaintiffs have standing to sue.

II. Delta-8 products, derived from naturally grown “hemp” (that meets the statutory
definition in federal and state law) is legal

a. Delta-8 products, which are created from naturally grown hemp, are in accordance
with the purpose of Kentucky’s hemp statutes, and are legal; to the extent Defendant
Burnett argues “risk to the public,” it is for the General Assembly and Congress to
make those determinations, not KSP.

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 Starting in 2014, with the 2014 Farm Bill, federal policy began to distinguish between

hemp and industrial hemp and marijuana. In 2018, Congress again, in the 2018 Farm Bill,

passed measures intending to legalize the former, while continuing to criminalize the later,

creating a definition for hemp:

(1) Hemp. The term “hemp” means the plant Cannabis sativa L. and any part of that
plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers,
acids, salts, and salts of isomers, whether growing or not, with a delta-9
tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.

7 U.S.C. 1639o.

Congress also amended the Controlled Substances Act, to account for this definition, and

clear legalization, of industrial hemp. Controlled Substances Act. 21 USCS § 802(16)(B). That

provision states:

“(B) The term ‘marihuana’ does not include—

(i) hemp, as defined in section 297A of the Agricultural Marketing Act of 1946 [7
USCS § 1639o]; or

(ii) the mature stalks of such plant, fiber produced from such stalks, oil or cake made
from the seeds of such plant, any other compound, manufacture, salt, derivative,
mixture, or preparation of such mature stalks (except the resin extracted
therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is
incapable of germination.”

In turn, the Drug Enforcement Agency amended Schedule I to accommodate this

definition, which now states, for DEA reference 7370, Tetrahydrocannabinols, at 21 CFR

1308.11(31)(ii), that: “(ii) Tetrahydrocannabinols does not include any material, compound,

mixture, or preparation that falls within the definition of hemp set forth in 7 U.S.C. 1639o.”

Pointedly, at various times, the Defendants have cited from a DEA website, that might suggest

that delta-8 is an illegal substance under a DEA listing at Reference 7370. As demonstrated

11
above, however, the actual CFR and regulation for Schedule I make clear that hemp products are

excluded from the actual regulation.

The Kentucky General Assembly has also undertaken significant revisions to Kentucky

law to accommodate industrial hemp and products derived from it.

First, Kentucky’s General Assembly enacted its policy concerning hemp in KRS

260.852: It is the declared policy of the Commonwealth that hemp is a viable agricultural crop

in the Commonwealth. The purposes of KRS 260.850 to 260.869 are to:

(1) Promote the research and study methods of cultivating, processing, and marketing
hemp;

(2) Promote the expansion of the Commonwealth’s hemp industry to the maximum
extent permitted by federal law by allowing citizens of the Commonwealth to cultivate, handle,
or process hemp and hemp products for commercial purposes; and

(3) Move the Commonwealth and its citizens to the forefront of the hemp industry.

Further, the General Assembly enacted KRS 260.850, which contains the following

definitions:

(5) “Hemp” or “industrial hemp” means the plant Cannabis sativa L. and any part of that
plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers,
acids, salts, and salts of isomers, whether growing or not, with a delta-9
tetrahydrocannabinol concentration of not more than three-tenths of one percent (0.3%)
on a dry weight basis;

(6) “Hemp products” or “industrial hemp products” means products derived from, or
made by, processing hemp plants or plant parts;

Further, KRS 260.858 provides the statutory scheme for products made from industrial

hemp in the Commonwealth. It provides:

(1) Notwithstanding any other provision of law to the contrary, it is lawful for a licensee,
or his or her agent, to cultivate, handle, or process hemp or hemp products in the
Commonwealth.

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 (2) It is unlawful for a person who does not hold a license issued by the department, or
who is not an agent of a licensee, to cultivate, handle, process, or market living hemp
plants or viable seeds, leaf materials, or floral materials derived from hemp. Penalties for
persons who cultivate, handle, process, or market living hemp plants or viable seeds, leaf
materials, or floral materials derived from hemp without a license are the same as those
penalties that are applicable to persons who violate KRS Chapter 218A, relating to
marijuana.

(3) It is unlawful for a person who does not hold a license issued by the department, or
who is not an agent of a licensee, to possess hemp extract material having a delta-9
tetrahydrocannabinol concentration in excess of three-tenths of one percent (0.3%).
Penalties for persons who possess such hemp extract materials without a license are the
same as those penalties that are applicable to persons who violate KRS Chapter 218A,
relating to marijuana.

Applying the plain meaning of this provision (KRS 260.858) makes clear that, (a)

licensees may cultivate and process hemp and hemp products in the Commonwealth; and (b)

non-licensees may possess hemp extract material having a delta-9 tetrahydrocannabinol

concentration at or below three-tenths of one percent (0.3%).

KRS 260.8635 further contains a prohibition (with an exception) on moving or

transporting “any hemp extract material having a delta-9 tetrahydrocannabinol concentration in

excess of three-tenths of one percent (0.3%).”

Kentucky’s Controlled Substances Act also contains definitions that are relevant.

Specifically, the Act defines “Marijuana” as: “all parts of the plant Cannabis sp., whether

growing or not; the seeds thereof; the resin extracted from any part of the plant; and every

compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin or

any compound, mixture, or preparation which contains any quantity of these substances. The

term ‘marijuana’ does not include: (a) Industrial hemp that is in the possession, custody, or

control of a person who holds a license issued by the Department of Agriculture permitting that

person to cultivate, handle, or process industrial hemp; (b) Industrial hemp products that do not

13
include any living plants, viable seeds, leaf materials, or floral materials; … (e) A cannabidiol

product derived from industrial hemp, as defined in KRS 260.850.” KRS 218A.010(28).

Finally, Kentucky has legalized cannabidiols as a substance for human consumption,

which requires certain testing based on the “amount of delta-9 tetrahydrocannabinol.” KRS

217.039.

The evidentiary record is clear. There simply is no doubt here, but that the products in

question are: “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof

and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether

growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent

on a dry weight basis.” 7 U.S.C. 1639o; KRS 260.850.

As this Court is well aware, in examining these statutes the "foremost objective is to

determine the legislature's intent. . . ." Maze v. Bd. of Dirs. for the Commonwealth Postsecondary

Educ. Prepaid Tuition Trust Fund, 559 S.W.3d 354, 363 (Ky. 2018). Courts determine

legislative intent, "if at all possible, from the language the General Assembly chose, either as

defined by the General Assembly or as generally understood in the context of the matter under

consideration." Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011).

Always, "we look first to the language of the statute, giving the words their plain and ordinary

meaning." Richardson v. Louisville/Jefferson Cty. Metro Gov't, 260 S.W.3d 777, 779 (Ky.

2008). In accomplishing this objective, Courts presume that the General Assembly intended for

the statutory scheme to be construed as a whole. Hall v. Hospitality Resources, Inc., 276 S.W.3d

775, 784 (Ky. 2008).

Here, the plain language is clear: the products in question are legal: they are “derivatives,

extracts, cannabinoids, isomers, acids, salts, and salts of isomers ” of “the plant Cannabis sativa

14
L.,” with “a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry

weight basis.” 7 U.S.C. 1639o; KRS 260.850; Affidavit Jackson; V.R. 12/16/21, 11:04:20-

11:23:33.

That ends the analysis. The products are legal.

Commissioner Burnett argues that because there is a middle step, namely distilling to

CBD, and then a chemical conversion, that delta-8 products cease to be derivatives under the

meaning of the statute. (Brief at 7-8). He argues that the production involves a synthetic

chemical process. (Brief at 8). And he raises various public policy arguments about his views

on appropriate public policy. (Brief at 8-10).

The dictionary definition of a synthetic is anything that undergoes a “chemical

synthesis,” and a “synthesis” is defined as the “production of chemical compounds by reaction

from simpler materials.” It is dubious to suggest that there is anything simple going on in this

process, but assuming that is all true, so what? A “derivative” is defined as “something that is

based on another source.” It has also been defined as “a 'substance so related to another

substance by modification or partial substitution as to be regarded as theoretically derived

therefrom, even when not obtainable from it in practice.” Shell Dev. Co. v. Watson, 149 F. Supp.

279, 282 (DCD 1957). These definitions do not prohibit, or limit “derivatives of derivatives”

because derivatives of derivatives are based on the original product.

In fact, Kentucky law permits all isomers and derivatives of hemp other than delta-9

tetrahydrocannabinol above the prescribed limit:

(5) “Hemp” or “industrial hemp” means the plant Cannabis sativa L. and any part of that
plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers,
acids, salts, and salts of isomers, whether growing or not, with a delta-9
tetrahydrocannabinol concentration of not more than three-tenths of one percent (0.3%)
on a dry weight basis. KRS 260.850(5).

15
 The Commissioner then doubles back on his argument and essentially argues that because

a chemical process is involved in converting CBD to Delta-8, the product does not come

“directly” from the plant, and is therefore (in his view) illegal. That is a curious argument. After

all, the General Assembly (and Congress) could have written the statute to indicate, instead of

“all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers” (as it is

written), to instead be “derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of

isomers that come directly from the plant, without any chemical refinement,” but, of course, they

did not. And the Commissioner’s attempt to rewrite the statute, from “all derivatives” of hemp

to a significantly smaller subset of derivatives, must fail.

The Commissioner next states that the products are not a derivative of the plant. That is

absurd.

As an aside, and to assist the Court with discerning the relevant meaning, our country’s

controlled substances laws have long utilized the term derivative to describe illegal products to

be those made from illegal products – one could not start with cocaine or heroin – and turn it into

something else (no matter how many steps are involved) to avoid regulation. United States v.

Berrojo, 628 F.2d 368 (5th Cir. 1980) (explaining that cocaine, which was made from coca

leaves, was a derivative of such a product and thus illegal under Schedule II, which prevented all

derivatives from coca leaves); State v. Reckards, 2015 ME 31 (ME 2015) (explaining that a

derivative of the product at issue was created in a laboratory synthetically as something based on

the original product); State v. Wong Fong, 75 Mont. 81, 85 (Mt. 1925) (rejecting Defendant’s

defense that proof failed on the meaning of “derivative” in a controlled substances case and

explaining that “[a] derivative is that which is derived; anything obtained or deduced from

another.”).

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 In his zeal to defend the indefensible, Commissioner Burnett fails to recognize a serious

problem that his statutory construction will cause (beyond, of course, the obvious in that it fails

to comport with the plain meaning of the statute): by limiting “derivatives” to only those that are

created in a single step chemical process, such a construction will gut numerous controlled

substance laws in this Commonwealth that also ban derivatives. See, e.g. KRS 218A.1412(1)(d)

(prohibiting, among other things, “fentanyl derivatives”); KRS 218A.010(28) (prohibiting

marijuana derivatives, but excluding hemp and its derivatives); KRS 218A.010(33) (prohibiting

opiate and cocaine derivatives); KRS 218A.010(47) (prohibiting Salvia derivatives). While

permitting derivatives created in two or more steps from fentanyl, opiates, and cocaine (the net

result of the Commissioner’s absurd statutory construction) may be acceptable to the

Commissioner, so long as he can prohibit and continue to target delta-8 products created from

natural and lawful hemp, we submit that the General Assembly would not see it the same way.

The notion that people preparing fentanyl, opiates, and cocaine could avoid regulation

merely by making derivatives of derivatives (or simply performing a two-step chemical process)

is absurd. Yet that is the result that will follow from the Commissioner’s reckless approach to

statutory construction.

The Commissioner argues that the products at issue may contain residual chemicals not

found in any plant. Our first response is: so what? If the General Assembly wishes to prohibit

such products, or by products, they know how to do so.

Finally, the Commissioner turns to the General Assembly’s stated purpose regarding

hemp (Brief at 9-10). KRS 260.852. Only, once again, he does not cite the entire statute. He

ignores the following purposes: “(2) Promote the expansion of the Commonwealth’s hemp

industry to the maximum extent permitted by federal law by allowing citizens of the

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Commonwealth to cultivate, handle, or process hemp and hemp products for commercial

purposes.” And, to “Move the Commonwealth and its citizens to the forefront of the hemp

industry.” Clearly then, making illegal products that are legally obtained in every neighboring

state is a far, far, cry from fulfilling those purposes set by our General Assembly.

b. Delta-8 products are not an analogue to delta-9 marijuana

Commissioner Burnett next argues that delta-8 products are analogs to prohibited delta-9

marijuana and are thus illegal under KRS 218A.010(9). He engages in a seriously flawed

analysis to get there. Let us begin here: KRS 218A.010(9)(a)(1) limits its import to a substance

that is “substantially similar to the structure of a controlled substance in Schedule I or II.”

Kentucky regulations, at 902 KAR 55:015, Section 1, provides: “(2)The following shall

be exempt from control as a Schedule I substance: … (b)Any substance or product exempt from

the definition of marijuana pursuant to KRS 218A.010(27)(a) – (f).” Two such definitions apply

to delta-8 products: “(b) Industrial hemp products that do not include any living plants, viable

seeds, leaf materials, or floral materials; … (e) A cannabidiol product derived from industrial

hemp, as defined in KRS 260.850.” KRS 218A.010(27)(b); KRS 218A.010(27)(e).3

In other words, it cannot be the case that something that has been specifically excluded

from control under the Kentucky Controlled Substances Act as lawful, can somehow be within

the ambit of an analog, particularly where, as is the case here, it has also been excluded from

Schedule I. It bears noting that the analog statute KRS 218A.010(9)(a)(1) is general in nature,

while the exemptions from the definition of marijuana at KRS 218A.010(27)(b) and KRS

218A.010(27)(e) are specific. Thus, it cannot be the case that hemp and its derivatives can be

3
Both “Industrial Hemp” and “Industrial Hemp Products” are defined in the Controlled
Substances Act as incorporating the definitions in KRS 260.850. See, e.g. KRS 218A.010(23)
and (24).
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under the auspices of the analog act. However, if there is a conflict, and it appears that two

statutes are conflicting, the general rule is "that the specific provision takes precedence over the

general." Commonwealth. v. Phon, 17 S.W.3d 106, 107 (Ky. 2000).

Commissioner Burnett next makes arguments about the “purpose” of the Kentucky Hemp

program to attempt to bolster his arguments. (Brief at 11). He forgets that he is not the policy

setter. He is the policy enforcer. The General Assembly sets the policy in this Commonwealth.

And its purposes, which are at odds with the purposes set forth in his brief by Commissioner

Burnett are to: “ (1) Promote the research and study methods of cultivating, processing, and

marketing hemp; (2) Promote the expansion of the Commonwealth’s hemp industry to the

maximum extent permitted by federal law by allowing citizens of the Commonwealth to

cultivate, handle, or process hemp and hemp products for commercial purposes; and (3) Move

the Commonwealth and its citizens to the forefront of the hemp industry.” KRS 260.852.

Permitting products that are lawful in every surrounding state furthers that purpose.

Raiding stores and shutting down economic activity related to these activities do not.

III. CONCLUSION

Delta-8 products, derived from lawful hemp are lawful. Judgement should be entered for

Plaintiffs.

Respectfully submitted,

/s/Christopher Wiest________
Christopher Wiest (KBA 90725)
25 Town Center Blvd, STE 104
Crestview Hills, KY 41017
513-257-1895 (v)
chris@cwiestlaw.com
Trial Attorney for Plaintiffs

/s/Thomas Bruns

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 Thomas Bruns (KBA 84985)
4750 Ashwood Drive, STE 200
Cincinnati, OH 45241
tbruns@bcvalaw.com
Co-Counsel for the Plaintiffs

CERTIFICATE OF SERVICE

I certify that on this 26th day of April, 2022, I electronically filed a true and correct copy
of the foregoing with the Clerk of Court by using the Kentucky Court of Justice eFiling website,
which will send a notice of electronic filing and a link to the document to those attorneys listed
below. I further rely on Section 11(1) of the eFiling Rules of the Court of Justice that provides
that transmission of a hyperlink to the electronic document constitutes service under C.R. 5 and
served by electronic mail.

/s/Christopher Wiest________
Christopher Wiest (KBA 90725)

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