Nebraska AG Hilgers says Delta-8 lawsuits to get costlier, prosecutions coming

Yahoo

20-03-2025

Nebraska Attorney General Mike Hilgers. June 30, 2023. (Zach Wendling/Nebraska Examiner)
LINCOLN — Nebraska Attorney General Mike Hilgers said Thursday that he is done negotiating with smoke and vape shop retailers he says are breaking state law by selling candy and other products with Delta-8, a synthetic version of THC.
Hilgers has spent the past year and a half trying to persuade and sue retailers into pulling off the shelves what he calls a dangerous, unregulated drug before more people than the half-dozen or so complaints his office has received get hurt.
In some of those cases, he has worked with retailers selling the gummies, pouches and other ways to consume Delta-8 products to avoid using the full extent of potential state civil penalties and fines. He's also avoided referring them for prosecution.
No longer, he said Thursday.
He said his civil attorneys in the AG's Office are sending letters to 35 to 37 owners of 104 stores in the Omaha area demanding the products be pulled from store shelves, or the state will sue for maximum pain.
In cases where Delta-8 sales continue or where harder drugs were offered or sold, he said his office would refer any relevant investigative reports to local county attorneys for the filing of possible criminal charges.
'We gave them plenty of warning,' Hilgers said. 'We thought criminal prosecution was not the right tool. They have decided not to change. Now criminal prosecutions are on the table as well. … What they should do is take it off the shelf.'
Store owners in previously targeted communities, including Norfolk in northeast Nebraska, have said they felt blindsided by the AG's approach and that they had received little warning until they received the letter threatening legal action.
Some negotiated settlements with the AG's Office. Others, Hilgers said, kept selling.
Joseph Fraas, who owns G&G Smoke Shops in Omaha and Lincoln, told the Legislature's Judiciary Committee in late January that he employs 18 people and that Nebraska's proposed ban on Delta-8-related products would 'severely damage' his business.
'If our businesses survive this ban, it is likely that most of our employees and their families will not,' he said at the hearing. 'Not only that, but this bill will destroy millions of dollars in economic activity.'
Hilgers said retailers' only option now is removing the products from their shelves or paying the price. He said there is no limit to how many lawsuits he would file.
For Hilgers, stepping into the state's largest city was an escalation and a warning to retailers in the rest of the state that his patience had been tested. He said the Omaha stores getting letters are already illegally selling products.
His allegations are powered by a single-day set of buys at all 104 stores organized by the Douglas County Sheriff's Office. Douglas County Sheriff Aaron Hanson, who attended Hilgers' news conference, said Delta-8 products put people at risk.
'You can't trust drug dealers,' Hanson said of people pushing Delta-8. 'This is an industry that cannot be trusted. We did not find one location that was operating in compliance with the law. … These things are impacting regular people.'
Thus far, the AG's Office has filed 15 lawsuits alleging that retailers have violated state consumer protection laws, including on protections from deception and the contents of food. The office said it had settled 12 of the 15.
The other three lawsuit remain in progress, the AG's Office said. The lawsuits to date were filed in Platte, Scotts Bluff, Hall, Madison, Lancaster, Sarpy, Lincoln, Saline, Keith and Dawes Counties, a spokeswoman for the AG's Office confirmed.
Hilgers, who has pushed since at least 2023 for legislation outlawing Delta-8, said the only thing that will stop his legal filings against store owners is if the Legislature adopts Omaha State Sen. Kathleen Kauth's Legislative Bill 316.
That bill clarifies what Hilgers said the law already is in Nebraska. It explicitly bans the sale of products made from Delta-8. Some retailers have argued legalizing hemp allowed products like Delta-8 to be sold under a 'loophole' in the 2018 Farm Bill passed in Congress.
'If the bill passes, we will rethink our enforcement strategy,' Hilgers said. 'If it doesn't pass … Option 2 is what we're doing right now.'
Kauth said she had received an email from the mother of a 38-year-old man after the late January hearing for LB 316 who told her that her son had gone into a coma for three days after consuming a product with Delta-8 in it.
'These are dangerous products, and people go into a store and assume that the government has done its job and made sure that they are safe,' Kauth said. State Sen. Jared Storm of David City has prioritized the Kauth bill so it will have a greater chance to reach the legislative floor and be debated.
State Sen. John Cavanaugh of Omaha has a competing proposal that would create a new state regulatory regime over hemp-created products like Delta-8: LB 16. Both LB 316 and LB 16 are awaiting action from the Judiciary Committee to advance.
Critics of the Nebraska AG and his efforts have said he is scaring people without local research and facts to back up his claims. They compared it to decades of fear built up around recreational marijuana, which Hilgers also opposes.
Hilgers acknowledged again on Thursday that he has no hard local numbers for injuries or deaths from Delta-8 and said he has to lean on national data. Much of what the AG's Office shares is anecdotal, he explained.
Hanson said he tries to draw a separation between the politics around marijuana and the need to get Delta-8 off of the shelves. Hilgers said some of the same trust issues exist with both and that he continues to believe both remain illegal.
'They are tied … if you can't trust the Delta-8 industry, I'm not sure how you could trust the marijuana industry.'
Nebraska Examiner reporter Zach Wendling contributed to this report.
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