The Delta-8 Dilemma

When the 2018 Farm Bill legalized cannabis plants with .3% delta-9 THC or less—defined as hemp—it led to the success of hemp derivatives like cannabidiol (CBD), a cannabinoid that is sold far and wide. But now comes the rise of a hemp-derived cannabinoid that sits in a legal and regulatory gray zone. 

The cannabis world is stirring over delta-8 THC, which has been a boon for some in the hemp industry but left others wary that it could lead to a federal crackdown. It’s also prompting health concerns. As Cannabis Wire previously reported, the Centers for Disease Control and Prevention issued its first health advisory on delta-8 in September because of a rise in reported adverse events, including hospitalizations. The agency says “insufficient labeling” is partially to blame.

Because it is not specifically outlawed in the Farm Bill, delta-8 producers and sellers have carved out a space in the market they say is perfectly legal. But at least nineteen states have banned or restricted its sale and use. They run the spectrum in terms of cannabis policy, from states that ban all cannabis-related products, like Idaho, to others, like Colorado, where adult-use cannabis is legal.

The reason: Like delta-9 THC, the main psychoactive compound in cannabis, delta-8, also  produces a high, although it’s milder and shorter lasting. Some delta-8 products have been marketed as “diet weed” or “weed light.” Delta-8 is an isomer of delta-9—that is, composed of the same atoms, but in a different configuration. But the Farm Bill’s .3% THC limit only mentions delta-9, meaning delta-8 doesn’t face the same clear restrictions as its molecular cousin.

Delta-8 is naturally occurring in cannabis plants but in very small quantities, making it unprofitable to extract. But with CBD—short for cannabidiol, a compound found in the cannabis plant that, unlike THC, doesn’t get people high—producers have found another source for delta-8. Because cannabinoids of all kinds share similar molecular structures, it’s easier to synthesize delta-8 from CBD than it is to collect it from the plant. While there are many approaches, the crux of the operation involves dissolving CBD in an acid, such as acetic acid, and applying heat, which converts the compound into delta-8 through a chemical reaction. 

The synthetic conversion process is another concern for the CDC, which it says “may create harmful by-products that presently are not well-characterized.” 

The high that people get from delta-8 presents a dilemma for the hemp industry and its regulators. “It really is a cause for alarm that there now are products out there that are being marketed as hemp but also for their intoxicating qualities,” Jonathan Miller, general counsel for the US Hemp Roundtable, told Cannabis Wire. “Because that’s not what Congress intended.” 

The problem, Miller says, is that some in the hemp industry believe the Farm Bill gave them wiggle room, since it only mentions delta-9 THC. “The spirit of the law was clearly that they were drawing a line between non-intoxicating hemp and marijuana that could get you high, and so our efforts now to try to fully and regulate CBD and other hemp byproducts are being endangered by this delta-8 discussion.”

A major concern is young people’s access to delta-8 products. The unregulated market for delta-8 means teenagers could go to gas stations or vape stores in states that haven’t banned the cannabinoid–such as Hawaii, New Mexico, or Ohio–and buy it off the shelves. They could also buy it online. Miller is worried a bipartisan agreement on hemp could be shattered if it looks like its legalization is leading to young people getting high.

The states are all over the map on delta-8, including states with legal adult-use cannabis. In Oregon, the Hemp Industries Association testified against a bill that would place the cannabinoid under the purview of Liquor and Cannabis Commission. In an interview with Cannabis Wire, the association’s executive director, Jody McGinness, called the attempt “the kind of government overreaction that industries live in fear from.” That bill eventually passed, putting delta-8 and other synthetic derivatives in a newly created category known as “Adult Use Cannabinoids and Cannabis Items”—under the commission’s supervision. 

Some states–including North Dakota, South Carolina and Vermont–have banned delta-8 products outright or clarified that they are banned. The New York Department of Health has proposed rules for prohibiting delta-8. Florida has taken a different approach, allowing sales but monitoring them closely. Holly Bell, Florida’s cannabis director, says the Florida Department of Agriculture and Consumer Services is testing products in the field for safety, noting she has about 350 sworn-in law officers at her disposal for crackdowns on products that are above the .3% delta-9 THC limit or contain contaminants. 

Bell says state regulators across the country meet regularly and delta-8 has been a hot topic. She believes the large agency backing her up is what separates Florida from other states that have banned the cannabinoid. Bans, she contends, “ come from state regulators that are underfunded and understaffed and overwhelmed, and that’s why they do it.”

At a national meeting for state agriculture regulators in Kentucky in September, delta-8 was in the spotlight, as Cannabis Wire reported. Kay Doyle, director of U.S. Public Policy and Public Affairs for Greenwich Biosciences who has served on the Massachusetts Cannabis Control Commission, said the patchwork of laws, which can differ widely even between neighboring states, is making it hard for states to regulate the industry. 

The Washington State Liquor and Cannabis Board released a policy statement in April clarifying that synthetically derived delta-8 was banned, although naturally occurring delta-8 could be added to cannabis products. In June, the board invited cannabis scientists to discuss delta-8 and its effects. Almost no scientific research exists on the compound, except for a handful of papers from the 1980s. Nephi Stella, a pharmacology and psychiatry professor at the University of Washington who studies the effects of cannabinoids, said those papers found that delta-8 produces a similar, but milder, reaction compared to delta-9. “Frankly, the field has not paid too much attention to delta-8 because it does almost the same thing as delta-9 in our initial view of the molecule,” Stella said.

Panelists at the June LCB meeting also talked about the way people obtain delta-8. Amber Wise, the scientific director at the cannabis testing lab Medicine Creek Analytics, says there are a number of different kinds of suppliers. “Many people are potentially doing this in a clean and safe and correct way, using trained chemists,” Wise said. “And many people, I’m sure, particularly in the unregulated market, are doing this in garages and using internet forums as instructions and we’re getting God knows what out as a product on the other side.”

Since the 2018 Farm Bill, CBD products have swept across the country and hemp farmers have swooped in to capitalize. But even with CBD’s popularity, the industry faces a glut of hemp. McGinness with the Hemp Industries Association says some farmers still have supply from 2019, and that’s partly because farmers have found it takes less hemp flower to produce the amount of CBD they need to fulfill their orders. Where else could this hemp go? CBD product used to synthesize delta-8 has been one enticing route.

But regardless of delta-8’s fate, everyone from state regulators to industry players agrees: more guidance from the federal government would ease uncertainty greatly. As Cannabis Wire has reported, the Food and Drug Administration has been crafting rules for CBD products since 2019, citing a need for more research as a reason for the long process. Like the CDC, the FDA recently released an advisory on the potential health risks from delta-8. The agency cites reports of adverse effects from ingesting these products that include vomiting, trouble standing, and loss of consciousness. It says there are potentially harmful byproducts from the process to synthesize delta-8 that could get into products.

The Hemp Industries Association’s position is that all hemp-derived products–including delta-8–should have a path to market, with a priority on consumer safety and science. The National Industrial Hemp Council has a similar stance.  McGinness with the Hemp Industries Association says federal regulations could help in this process and provide more certainty to hemp producers.

“The lack of swift action by federal regulators to assume control of this industry that Congress handed them in 2018–that’s really leading to most of the chaos you see in the industry,” McGinness told Cannabis Wire. “Delta-8 is one example and is getting a lot of the headlines. But you have fifty different regimes being set up to try and regulate something, to try and fill in the vacuum being left by those FDA regulations that we have no timetable for when we can expect them as an industry.”

Miller with the US Hemp Roundtable says legislation in Congress, the Hemp Access and Consumer Safety Act, would speed up the process, fast-tracking FDA rules on hemp derivatives. The bill was introduced in May and is cosponsored by Kentucky Senator Rand Paul and Senator Ron Wyden, but hasn’t moved since its introduction.

But another potential roadblock stands in the way–this time from the U.S. Drug Enforcement Administration. In an interim final rule released in August 2020, the agency stated that synthetically derived THC products, which could include delta-8 derived from CBD, remain Schedule I controlled substances, among the federal government’s most tightly regulated drugs. 

That has created fears the DEA will ban delta-8 and perhaps even go so far as raiding stores to shut down the market. But Bell, Florida’s cannabis director, told Cannabis Wire she spoke with the agency, and was told that shutting down this market isn’t on the agency’s radar. “They’ve got their hands full with fentanyl, opioids, meth, and heroin. Delta-8 is just not high up there.”

A DEA spokesperson said the agency is undergoing a rulemaking process for implementing the 2018 Farm Bill, including regulatory controls for cannabis and its derivatives, and says it’s unable to comment on the legality of delta-8 and other tetrahydrocannabinols until that process is complete. 

Delta-8 could be just a fad. The patchwork of state regulations and confusion over rules on the federal level could dissuade people in the hemp industry from entering the market. 

But the expectation is that folks will continue exploring everything the cannabis plant has to offer. That includes some of delta-8’s cousins, such as delta-7 and delta-10, which also supply highs. For states, regulating hemp-derived products could become a game of whack-a-mole until more definitive rules are put in place.

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