NE attorney general steps up fight against ‘misleading’ delta-8 retail sales, targets entire cities

Nebraska Attorney General Mike Hilgers when he held a press conference in October 2023 on what he called a major, unprecedented consumer protection action in the state targeting "deceptive" labeling of delta-8 products. (Courtesy of Nebraska Attorney General's Office)

LINCOLN — Saying he was stepping up Nebraska’s fight against “mislabeled” and “dangerous” delta-8 products, Attorney General Mike Hilgers on Wednesday announced the start of city-wide crackdowns on retailers who sell the items.

He said that while his escalated effort started in Norfolk, other cities should expect similar blanket investigations.

“We are ramping up our efforts to clean up Nebraska,” Hilgers said. “For the first time, we have sued every store in a community. The stores are misleading Nebraskans.”

Four new lawsuits

Flanked at a media event by U.S. Rep. Mike Flood of Norfolk, Hilgers told reporters of four new lawsuits covering five Norfolk stores. Filed Wednesday in Madison County District Court, they allege violations of the Consumer Protection Act, Uniform Deceptive Trade Practices Act and Nebraska’s Pure Food Act.

The latest suits joined legal actions filed since last year against a dozen other vape shops and businesses across the state. Some cases have been settled, with retailers agreeing not to sell prohibited hemp products that contain or have been modified with synthetic THC.

THC is the compound in the cannabis plant most commonly associated with getting a person high. Some of the THC-containing products in question were packaged and made to look like candy and snacks.

A spokesperson for two of the Norfolk stores said, however, they were unaware there was any problem with the products they buy from a wholesaler distributor.

Tiffany Colsden, general manager of NP Mart stores in Norfolk, said her team learned of the investigation Wednesday, when a reporter came knocking.

By noon, she said, the two stores had pulled the items in question off the shelves.

“All they had to do was tell us,” Colsden said. “If Nebraska doesn’t want us to sell it, we won’t. It’s that simple.”

She described NP Mart, which has two locations in Norfolk, as a convenience store that sells gas.

Lawsuits also were filed against Smokin’ Deals, Smokes R. Less and Vapor Hutt .

A person at Smokes R. Less hung up the phone when a reporter called.

Vapor Hutt officials could not be reached.

‘Everything by the book’

Smokin’ Deals owner Regina Uecker said she was saddened and upset that state officials hadn’t reached out to her, a sole proprietor, if there were questions. She, too, heard of the investigation Wednesday through a news reporter.

“I’m at a total loss, it’s so upsetting that they can’t work together,” Uecker said of state officials.

She said no changes were made to the store inventory as of Wednesday afternoon because she hadn’t been “served any papers” and did not know “what we’re getting charged for.”

“We do everything by the book,” she said. Uecker said her shop sells to customers 21 and older and does not sell products that resemble candies.

The Attorney General’s Office, which is charged with enforcing consumer protection laws, seeks civil penalties and other remedies.

Hilgers has pledged to try to close legal loopholes around delta-8 that opened when the 2018 farm bill opened up the hemp farming industry nationally. The bill limited delta-9 THC but did not address regulation of delta-8. States have been grappling with that loophole.

In explaining the rationale for citywide crackdowns, Hilgers said that retailers have told his team that if they stop selling products in question, bad actors would still continue. “And what have we done for that community?” said Hilgers.

Said Hilgers: “We’ll clean up city by city and we’ll start with Norfolk.”

‘Growing concern’

In Norfolk, he said that 34 products were tested from the stores and none was accurately labeled. He said over one-third of the products tested contained marijuana.

“This has been an area of urgent growing concern for not just Madison County but our entire trade area,” said Flood. ”These products have been a concern both at the state and the federal level.”

Last year, he said, the U.S. Food and Drug Administration received more than 300 reports of children and adults who were hurt consuming delta-8 THC products.

Hilgers said Norfolk was selected to start the ramped-up effort because of an aligned interest with Flood. Also, he said, his office previously filed a complaint against another Norfolk vape shop.

“The key thing is not where we start but where we end,” Hilgers said. “We’re going to go to every single city that has these types of stores in the entire state of Nebraska.”

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