You can grow hemp in Kansas. But this CBD store owner might go to jail for selling it – Kansas City Star

Lawrence

Annie Martin could have lit up a joint on the courthouse steps in Lawrence and faced a $1 fine as her sole penalty under the law here.

But for selling what she maintains was hemp — a product that does not contain enough THC to cause a high and is now legal to grow in Kansas — the former elementary school teacher is facing felony charges that threaten to put her behind bars for years.

Martin said she believed she did everything right before she and her fiance Sean Lefler opened their Free State Collective CBD store in Lawrence in 2018.

They called every state agency they could think of looking for guidance and regulatory approval, but got few answers. She acquired third-party lab results on her products. And their Free State Collective was just one in the ever-expanding sea of CBD stores selling everything from oils to dog treats.

But Martin caught the attention of law enforcement by selling hemp flower, which looks and smells just like marijuana but is chemically different — the store had lab reports from manufacturers showing so.

“Nobody was going to get high off of anything from our store,” she said. “They could have smoked all the hemp flower we had here and never got high.”

Her store has twice been raided by the Kansas Bureau of Investigation. At first, she was sure it was a misunderstanding. But police seized her inventory, cash from the register and iPads used to run the business.

And now, the two owners and an employee are facing Kansas felony charges. If convicted, Martin could face up to 206 months — more than 17 years — behind bars, her lawyer says. While some other Kansas CBD stores pulled hemp flower and cigarettes from their shelves to avoid being confused with marijuana, Martin says other nearby businesses still offer those products.

“There’s a lot of confusion,” she said. “And ultimately we’re paying the price for that.”

Though it derives from the same cannabis species as marijuana, hemp contains only trace amounts of mind-altering tetrahydrocannabinol, or THC. Like marijuana, states have become increasingly permissive of hemp, which was for decades outlawed under federal law.

Kansas this year launched an industrial hemp research program that has put the leafy green plant into hundreds of acres of farm fields across the state. Missouri will roll out a similar pilot program next year. Despite ongoing uncertainty, some farmers believe industrial hemp could be the Midwest’s next big cash crop.

But the state’s prosecution of a hemp case belies the growing acceptance of CBD, hemp and marijuana products in the law and the wider culture. And hemp’s integration into the mainstream of Kansas agriculture has done little to clarify the constantly changing law — a fact underscored by Martin’s case.

“The lines are so blurry we can’t even see them anymore,” said Sarah Swain, Martin’s defense attorney. “There needs to be lines drawn, because we can’t figure out if people are inside the lines or outside the lines if we don’t even know where the lines are.”

While she would like to see the state quit prosecuting all marijuana crimes, Swain said Martin’s case is especially hypocritical in Lawrence, where the city council recently reduced the penalty for many marijuana possession cases.

Swain, who last year unsuccessfully ran for Kansas Attorney General, said the serious charges over hemp raise questions about the priorities of Douglas County District Attorney Charles Branson. Prosecuting a hemp case costs taxpayers thousands and does nothing to keep actual marijuana off the streets, she said.

“What is the public interest in prosecuting Annie Martin?” she said. “It’s really to me about common sense.”

Confusion over hemp, marijuana and CBD

An elementary school teacher for more than 16 years, Martin was forced to quit teaching after her young son was in a serious boat accident in 2015 at the Lake of the Ozarks that left him with a traumatic brain injury and stroke.

After months of inpatient care, outpatient treatment and occupational and physical therapy, Martin discovered CBD products while searching for alternatives to prescriptions.

Since that time, Martin said CBD lotion has helped control his nerve pain without the harmful side effects of prescriptions.

With her son not attending school full time and busy with doctor’s appointments, Martin was unable to return to teaching full time. So she and her fiance opened their own business, Free State Collective, in August of last year.

Martin, who lives in Olathe, said customers come in to treat aches and pains or relieve anxiety. She says CBD water, edibles and tincture oils won’t cure anyone but can help treat symptoms.

Graphics of big green hemp leaves decorate the exterior of the store in an East Lawrence strip mall. Inside, big television screens list the prices of drinks, shots, syrups and vape juice in neon green text.

She said her hemp flower, essentially the smokable bud of the plant, was similarly advertised. They promoted the product online and the flowers were displayed in jars with binders containing information on specific strains.

“We weren’t trying to hide anything,” she said.

The industrial hemp program in Kansas allows licensed farmers to cultivate hemp with THC levels of no more than .3 %. (For comparison, one study of commercially available marijuana in Washington state found a median THC rate of 17.7 %.)

Martin believed the same standard applied to retail stores, so she acquired hemp flower and pre-rolled hemp joints purported to be below that threshold.

But the Kansas Department of Agriculture’s industrial hemp program does not regulate retail sales, officials said. That program authorizes growers and distributors to sell hemp only to others licensed in the program.

Ag department officials pointed to state law that explicitly bars the sale of hemp buds and ground up hemp flower or leaf to unlicensed operators. It also prohibits cigarettes, cigars and smokeless chew containing industrial hemp. If convicted, the law says violators could face a Class A misdemeanor charge for a first offense.

Martin, though is facing two felony counts for THC possession and distribution; her fiance faces four felony counts. Charging documents allege the two possessed more than a kilogram of THC.

The Douglas County district attorney’s office did not answer The Star’s questions about whether it makes a distinction between marijuana and hemp in prosecuting cases. Spokeswoman Cheryl Wright Kunard only said that those charging documents “reflect our position that marijuana was being sold at a CBD product store.”

On Valentine’s Day, KBI agents conducted their first undercover buy at Free State Collective. They purchased hemp flower and sent it off to the KBI lab for analysis. A chemist “identified the vegetation as marijuana with THC content,” according to an affidavit.

The next day, agents raided the shop in East Lawrence with a search warrant. In his interview of the couple, Special Agent Kelby Dickensheet alluded to confusion between regulatory agencies and law enforcement over hemp.

“The reason why we’re not making arrests or charging anyone right now is, we want to make sure we have our — you know, give us all the time to figure this out, all right?” he told Lefler, according to a transcript of body camera footage provided by the defense attorney.

But he did tell Lefler that no one in Kansas was allowed to sell hemp at the time.

Martin and Lefler cooperated with investigators, each telling Dickensheet their store was free of marijuana.

Martin said she was convinced the whole ordeal was a misunderstanding — her test sheets from manufacturers showed her products had only trace levels of THC, which she believed put her in compliance with the state’s agricultural hemp program.

“They’re growing hemp just a few miles from here — a lot of it,” she said.

But their legal problems were only just beginning.

How the KBI got involved

An affidavit says Dickensheet received an anonymous tip about Free State Collective selling marijuana “under the guise of being legalized industrial hemp.”

A Lawrence man familiar with Kansas hemp laws told The Star that he called the KBI to complain about the business. The tipster, who did not want to be named, said he contacted local and state law enforcement only after warning Lefler and Martin that hemp flower was not permitted in Kansas. The man said they disregarded his warnings.

“They were told by several people,” he said. “It was so blatantly illegal.”

Martin acknowledged a competitor in town told them hemp flower was banned under the law. Other people argued with her and her fiance about the legalities of hemp flower and posted information on the business’s Facebook page about products that weren’t sold there, she said.

“It was never anybody from any (government) office,” she said. “It was just some random people.”

KBI spokeswoman Melissa Underwood said the agency would not comment on the ongoing case outside of the courtroom. She acknowledged confusion in the law, but did not say how the bureau was approaching law enforcement on hemp, marijuana and CBD.

“We are reviewing all recent changes to state and federal laws and understand that there may be confusion as to what is now legal,” Underwood said. “We don’t have specific guidance to offer at this time.”

KBI’s bust in Lawrence is reminiscent of the 2017 raid of Into the Mystic, an alternative medicine store in downtown Mission. Officers from the Mission Police Department, citing a “zero tolerance” standard, confiscated CBD products that lab tests showed contained trace amounts of THC.

Owner Eddie Smith did not face any criminal prosecution. He eventually restocked with THC-free CBD products. He also pulled his hemp flower and hemp pre-rolls after hearing of the state’s hard line on those products from other store owners.

“We’ve regressed,” he said.

Smith doesn’t blame law enforcement — he says Topeka is to blame for the state of the law. But he said the current framework is nonsensical.

“It’s asinine,” he said. “Hemp is grown in Kansas but yet it’s illegal to do anything with that hemp. I’m not quite understanding that.”

Laws are changing quickly in Kansas

After the February raid at Free State Collective, Martin said she heard nothing from the KBI. Her attorney tried contacting the agency but got no response, she said.

Agents conducted a second undercover buy in March and raided the store with a search warrant on March 23. Martin says agents were armed and several wore face masks during both searches.

An affidavit says the agents purchased plants that were later “identified as marijuana containing THC,” but it’s unclear what level of THC those items contained. Martin’s attorney said KBI documents she received as part of the discovery process showed some of the store’s products contained no THC. Other products were shown to contain some THC, but no testing was done to determine the actual percentage of THC, she said.

The KBI said it submitted a total of 4,496.64 grams — nearly 10 pounds — of “marijuana with THC content” to the lab for examination.

Martin believes the KBI misunderstood the distinction between marijuana and hemp. Across the country, law enforcement agencies have had trouble distinguishing between the two. In some cases, patrol officers discover a truckload of product, unclear whether they’ve found a legal agricultural commodity or the biggest drug bust of their careers, the Associated Press reported.

And in Kansas, the law has rapidly evolved.

In February 2018, Kansas Attorney General Derek Schmidt wrote an opinion that declared all CBD products, even those with no THC, illegal in Kansas. That changed after the Legislature removed CBD from the definition of marijuana in April 2018.

Schmidt followed with a June 2018 opinion, writing that it was then allowed to possess or sell CBD products. But he said it remained unlawful to possess or distribute any amount of THC.

Vince Sanders, the owner of the American Shaman chain of CBD stores, said the Lawrence case is a cautionary tale for those looking to enter the booming CBD market. He said he regularly hears about stores in Kansas selling hemp flower.

“And if they get caught they’re going to get in trouble,” Sanders said.

American Shaman is the nation’s largest chain of CBD stores, with more than 40 stores in the Kansas City area. In an effort to avoid the ire of law enforcement, Sanders removed all THC from American Shaman products sold in Kansas stores. In Missouri and other states, some contain trace amounts of it.

Sanders said the law remains fuzzy, and that he’s told legislators “hundreds of times” that rules regarding hemp farming ought to line up with those governing hemp sales. Still, he understands the confusion between hemp and marijuana. He’s very familiar with the latter and still can’t tell the difference without a lab test. Even then, he said it’s easy for stores to unwittingly buy illegal products, as third-party lab results provided by hemp and CBD companies can be errant or doctored.

“This is a complicated matter that really requires expert legal opinions and chemists,” he said. “If you don’t have that, you’re really at high risk.”

In Lawrence, a ‘black hole’ over pot and hemp

The cases against Martin and Lefler are being prosecuted by Amy McGowan, Douglas County’s chief assistant district attorney. McGowan was the prosecutor accused of withholding evidence during the 1997 double murder trial of Ricky Kidd, who was convicted despite a lack of physical evidence connecting him to the crime. Earlier this month, a Missouri judge ordered that he be released, declaring evidence of his innocence “clear and convincing.”

In 2013, the Douglas County district attorney removed McGowan from her caseload of major felony sex crime cases after the Kansas Supreme Court faulted her for trial errors in separate Kansas cases.

Just before the KBI searched the Lawrence CBD store for the second time, the Lawrence City Commission sent its own message about marijuana: It lowered penalties for offenders’ first and second convictions of possessing small amounts of marijuana to a $1 fine.

That reality — paired with the college town’s perception as a progressive haven in ruby red Kansas — make the hemp case even more difficult for Martin’s defense attorney to comprehend.

“There’s a lot of hypocrisy going on,” Swain said.

Swain’s 2018 campaign for attorney general was probably best known for controversy: She was disavowed by the Kansas Democratic Party after law enforcement groups objected to a poster advertising her firm that showed DC Comics character Wonder Woman wrapping her lasso around the neck of a police officer.

But during that race, she campaigned on ending the war on drugs, decriminalizing marijuana and ushering drug offenders into rehab instead of prison — a drum she’s still beating today. In the meantime, she said law enforcement agencies should at the very least provide clarity around marijuana, hemp and CBD.

“It’s really this black hole that we’ve all fallen into,” she said. “And everybody’s looking for guidance that doesn’t exist from someone higher up the chain of command.”