Most Americans are familiar with the term “THC” by this time. What they may not appreciate yet is that the general nomenclature actually refers to Delta-9-Tetrahydrocannabinol, or “Delta-9” THC. This is the scientific terminology for the molecule in marijuana that is known for its psychoactive properties – that is, what causes a “high”. Delta-9 is a cannabinoid and there are hundreds of different cannabinoids in a given cannabis plant.
While Delta-9 THC is the compound routinely sold as marijuana, it isn’t the only cannabinoid with psychoactive properties found in the cannabis plant (marijuana or hemp). Another compound, delta-8-tetrahydrocannabinol (“Delta-8”) also causes a “high”, albeit possibly a weaker one.1 Like Delta-9, Delta-8 contains tetrahydrocannabinol or “THC”.
While Delta-9 is illegal under federal law (and in some other states) because it has psychoactive effects, Delta-8 can presumably be legal. This is a result of the way Congress drafted the 2018 Farm Bill that legalized hemp but continued to criminalize marijuana. The law defines “hemp” as a part of the cannabis plant with a Delta-9 concentration of less than 0.3% .2 “Marijuana” contains more than 0.3% Delta-9 and is illegal. The vast majority of state laws reflect this definition.
When Congress legalized all cannabinoids naturally derived from the hemp plant, with the exception of delta-9 THC testing above 0.3% THC, some in the hemp industry saw this as an opportunity to use hemp-derived delta-8 THC “legally” to sell. Some in the hemp industry, including the General Counsel of the US Hemp Roundtable, have acknowledged that Delta-8 products are clearly “in breach” the spirit of the law, “but it is unclear whether they violate the letter of the law.3 This appears to mean that a cannabis plant that contains less than 0.3% Delta-9 but a significant concentration of Delta-8 , could be classified as legal hemp in the clear text of the law.
However, the preliminary final ruling by the Drug Enforcement Administration, which was supposed to deal with the legalization of hemp through the Farm Bill, confirms that “synthetically produced tetrahydrocannabinols” are still illegal. Unfortunately, the IFR does not explain what “synthetically derived” means. Since Delta-8 is derived from hemp through a process that may alter the molecular structure of CBD, it is plausible that DEA would conclude that Delta-8 is synthetically derived when they issue their final rule.
Entrepreneurs have reacted quickly to the current void and a Delta-8 market has exploded. In fact, Delta-8 is “easy to purchase online, mail you, or find it in an unlicensed store.” 4 In particular, “Delta-8 vendors are increasingly appearing in” cannabis desserts “that offer licensed pots. Shops are not open.” 5
However, the fact that Delta-8 exists in a legal gray area means it is not under the same supervision or control that is increasingly being applied to substances like cannabidiol (“CBD”) or government-approved marijuana that is tested for consumer safety.
A former Illinois State Senator Pam Althoff, who is now the executive director of the Illinois Cannabis Business Association, stated, “Delta-8 creates a competitive market without the same standards and rules and regulations as the cannabis industry.” 6 Similarly A cannabis test laboratory tested several Delta-8 products and found “high levels of residual solvents and heavy metals, namely lead and chromium” in products.7
With the hemp plant pulling heavy metals out of the soil, it’s no surprise that untested Delta-8 products contain heavy metals.8 The Food and Drug Administration has repeatedly raised similar concerns about the presence of heavy metals and other contaminants such as pesticides, such as CBD.9 In addition Some Delta-8 products have been shown to contain illegal concentrations of Delta-9, meaning they are actually in violation of state and federal marijuana laws
In response, some states are taking steps to regulate or ban Delta-8. The Oregon Liquor Control Commission has initiated a Delta-8 rule-making process to respond to “Commissioners’ concern about the general availability of this unregulated intoxicating product.” 11 In explaining the rule-making process, the Commission stressed that sales of Delta 8 products are booming due to a “regulatory loophole” that does not require end-product testing and expressed concern about the lack of transparency requirements for labeling.12 Similarly, has The Washington Liquor and Cannabis Board has taken steps toward a process to establish rules governing the legal status of Delta-8.13 In the meantime, the state has issued an opinion finding that Delta-8, which occurs naturally Made from marijuana is legal, while Delta-8, which is synthetically derived from hemp compounds, is considered an illegal additive.14 North Dakota Takes a More Restrictive Approach Legislators have passed changes to its current Hemp Act to add Delta-8 (along with Delta-9 and Delta-10) to prohibit altogether. While the Oregon Commission’s remarks suggest a response focused on testing and labeling requirements, North Dakota would take a stricter approach. His amendment changes the definition of “THC” in such a way that the total amount of THC in a facility is identified regardless of its source and not the total amount of delta-9 THC as before
And in Illinois, a Democratic representative introduced House Bill 147, which would regulate Delta-8 and other cannabinoids.16 Again, this deals with readily available products in “kiosks and stores” [that] are ‘untested, unsafe, and rich in metals and pesticides.’ “17th
As states take action and legislators across the country become more aware of concerns about the availability and safety of Delta-8, more state hemp laws are likely to be amended to fill the current regulatory loophole. It remains to be seen whether most states simply impose licensing, testing and labeling requirements or whether they will ban the substance entirely. Similar changes to federal law and regulation may also be possible.
In the meantime, companies that choose to sell Delta-8 products should know that state and federal regulators are watching and manufacturers could soon find themselves in an unenviable place.
2 See 7 USC 1639o (1).
16 https://www.thecentersquare.com/illinois/cannabis-group-calls-for-regulation-of-delta-8-products-sold-outside-of-cannabis-dispensaries-in/article_80311124-9d52-11eb-971f -d37857d04902.html
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