The Delta-8 THC Controversy
May 26, 2021
What's really at stake?
Even as the edifice of cannabis prohibition crumbles state by state, the federal illegality of the plant and its principal psychotropic component THC continues to drive a quest for loopholes in the relevant statutes. Hence the recent focus on Delta-8 tetrahydrocannabinol — a psychoactive but less potent cannabinoid than the more common and notorious Delta-9 THC.
Is there any truth to the claim that the 2018 Farm Bill inadvertently legalized Delta-8 THC, as some entrepreneurs maintain? That certainly wasn’t the spirit or intent of the Farm Bill, which did not seek to legalize psychoactive cannabis compounds.
The Farm Bill removed hemp – defined as cannabis with less than 0.3 percent THC – from the purview of the Controlled Substances Act. But the Farm Bill never actually mentions Delta-8 THC. And there’s considerable disagreement among hemp advocates regarding the legal status of this compound and what it means for the cannabis industry as a whole.
THE DELTA-8 CRAZE
Delta-8 THC (like CBD a couple of years ago) is suddenly everywhere — from upscale boutiques to truck stops. The Chicago Sun-Times (April 13, 2021) writes, rather credulously, that a “growing number of Chicago businesses are now exploiting a loophole in federal law that appears to allow the unfettered sale of a trendy hemp byproduct called Delta-8-THC, which has commonly been described as ‘marijuana-lite’ or ‘diet weed.’ Retailers across the city have started selling a variety of Delta-8 products in settings that resemble licensed cannabis dispensaries but aren’t subject to the same stiff regulations. Many sell everything from edibles to vape cartridges, as well as smokable hemp flower sprayed with Delta-8 extract.”
Will Delta-8 THC be the ‘next big thing’ or a dead-end for the hemp industry?
Emporia such as the Wake-N-Bakery coffee shop in Chicago’s Lake View district “seized on Delta-8 after the federal Farm Bill of 2018 made legal the distribution and sale of hemp and its byproducts. That law explicitly excluded Delta-9, but there’s no mention of its mellower relative.”
Typical boosterism is displayed in a February 2021 press release from the Boston Hempire company: “There are about 120 total cannabinoids within the hemp plant including the most known CBD, THC, and CBG. New cannabinoids like CBN and CBC are starting to enter the market as well. As science begins to dive deeper into the plant’s genetic makeup, new products like Delta-8 THC are coming to light. This federally legal derivative from the hemp plant falls under the 2018 Farm Bill Act.”
A somewhat more sober assessment is offered by Hemp Benchmarks website, which asks if Delta-8 will be the “ ‘Next Big Thing’ or a Dead End for the Hemp Industry?” It states: “While there is burgeoning interest in Delta-8 THC in the U.S. hemp industry, its legal status is uncertain.”
PUSHBACK FROM STATE LAW ENFORCEMENT
In March of this year, police in the town of Clinton, South Carolina, raided a vape shop and seized an inventory of Delta-8 products. TSR Vape Shop owner Robert Oggenfuss was surprised by the turn of events. “They just told me point blank that they had it tested, it broke the law, so they’re taking my stuff,” Oggenfuss told WYFF, the NBC-TV affiliate in Laurens County.
In typically garbled verbiage, WYFF reported: “The Clinton police chief referenced SC Law 44-53-0190, which classifies Delta-8 as a controlled substance for having levels of THC … According to the South Carolina Hemp Farming Act, a product cannot contain more than 0.3% Delta-9 THC. No South Carolina law appears to specifically address Delta-8.”
To clarify: Delta-8 cannot have “levels” of THC, because it is THC. Presumably, what the report meant is that the products on sale had above 0.3% Delta-9 THC. Or that the police labs could not distinguish Delta-8 from Delta-9. Or that the authorities consider them equally illegal and therefore any product with more than 0.3% Delta-8 THC is forbidden in the Palmetto State.
Although law enforcement operations targeting Delta-8 THC products have been few and far between thus far, some states are proactively moving to ban Delta-8 THC. The Alabama Political Reporter informs us that the legislature in Montgomery is considering a measure that would add Delta-8 and Delta-10 (another THC variant) to the state’s controlled substances list. The measure, which has cleared the Senate Judiciary Committee, is being “vociferously opposed” by the Cotton State’s hemp industry.
But of course, the big-ticket question is federal law — and here, the claims and counterclaims about Delta-8 THC are hot and heavy.
THE DEA, AS USUAL, JUST SAYS NO
In August 2020, the Drug Enforcement Agency (DEA) issued new regulations for CBD and other hemp derivatives, which classified Delta-8 THC as a Schedule One controlled substance. Entitled “Implementation of the Agriculture Improvement Act of 2018,” the DEA’s Interim Final Rule explicitly states that the Farm Bill “does not impact the control status of synthetically derived tetrahydrocannabinols … because the statutory definition of ‘hemp’ is limited to materials that are derived from the plant Cannabis sativa L. For synthetically derived tetrahydrocannabinols, the concentration of Delta-9 THC is not a determining factor in whether the material is a controlled substance. All synthetically derived tetrahydrocannabinols remain schedule I controlled substances.”
“All synthetically derived tetrahydrocannabinols remain schedule I controlled substances.”
So the question hinges, to a large extent, on whether the Delta-8 in a given product is “synthetically derived.” Nearly all the Delta-8 on the market today is produced by chemically tweaking CBD in a laboratory. In other words, it is not directly extracted from the hemp plant but is synthesized from CBD that is directly extracted from the plant.
Also at issue is the 1986 Federal Analogue Act, which states that a chemical analog of a controlled substance “shall, to the extent intended for human consumption, be treated, for the purposes of any Federal law as a controlled substance in schedule I.” This means that the provisions of the 1970 Controlled Substances Act (CSA) that make Delta-9 THC a Schedule I substance also apply to Delta-8. Technically, Delta-8 THC is an isomer of Delta-9 THC, which means the molecules are made up of the same atoms, but they are arranged differently.
Moreover, the DEA’s official list of Controlled Substances, under its entry for “Tetrahydrocannabinols,” names these as: “THC, Delta-8 THC, Delta-9 THC, dronabinol and others.”
Is there really any ambiguity here? Only inasmuch as the 2018 Farm Bill carved out hemp-derived cannabinoids other than Delta-9 THC from the Controlled Substances Act. This is the narrow point seized upon by the Delta-8 boosters to make their case.
THE BENEFIT OF MR. KIGHT
The most aggressive and sophisticated of these boosters is Rod Kight, a North Carolina attorney who is currently representing the Hemp Industries Association and other plaintiffs in a federal court challenge to the DEA’s Interim Final Rule of last August. The case actually does not concern Delta-8; it involves the DEA’s classification of “waste hemp material,” which may contain THC, as a Schedule I substance.
On his blog, Kight contends that Delta-8 THC is legal because “tetrahydrocannabinols in hemp” are not controlled substances, according to the Farm Bill. But this argument hinges entirely on whether the Delta-8 now being marketed was, in fact, “in” hemp to begin with — or was it synthesized from “tetrahydrocannabinols in hemp”?
Project CBD spoke by phone to Kight at his office in Asheville to better understand his views on the matter. “I consider Delta-8 to be a hemp extract,” he says. “Or, the clearer way to say it is that is Delta-8 can be extracted from hemp. If Delta-8 is extracted from hemp, it’s legal — and that’s undoubtedly the case. Delta-8, while remarkably similar to Delta-9, is not Delta-9. And CBD derived from hemp is actually hemp from a statutory legal standpoint because hemp derivatives are also hemp under the Farm Bill.”
Kight’s quixotic quest for a legal loophole is reminiscent of the persistent stoner folklore that Cannabis Indica is actually legal because federal law only references Cannabis Sativa. The legendary botanist Richard Evans Schultes actually testified in court to this effect on behalf of cannabis defendants in the 1970s. But the court didn’t buy it, finding that the meaning of the name Cannabis Sativa was for legal purposes in the domain of judicial, not scientific, authority.
GOOD GUYS & BAD GUYS
Kight credits the Delta-8 boom with being a salvation for a new business sector in a very challenging time. “It single-handedly saved the hemp industry during the COVID-19 recession,” he asserts. “I say this based on communications with numerous clients. It’s been responsible for saving a large number of my clients.”
He also refers to the purported therapeutic benefits of Delta-8 THC: “It doesn’t have the paranoia effects associated with Delta-9 THC. It’s also effective against nausea. There are a lot of reasons people are purchasing Delta-8. I’m surprised how many people prefer it over Delta-9 products.”
Kight does acknowledge that there is reason to be concerned about the lack of oversight for unregulated Delta-8 products that are falling through legal cracks.
“There’s a lot of bathtub gin being made out there,” he states metaphorically. “We oppose that. My clients are very concerned with the safety of their products. It takes time for regulations to catch up with the development of products, that’s a big issue for sure. And testing protocols have not been standardized — the DEA and most state labs don’t even know how to distinguish between Delta-8 and Delta-9. One of the concerns in the industry is getting these methodologies in place so the good guys can continue to operate and the bad guys cannot.”
DISTILLATE OR SYNTHETIC?
Greg Gerdeman, PhD, a West Virginia-based neuroscientist and cannabinoid biologist, isn’t swayed by Kight’s efforts to interpret his way out of the Controlled Substances Act. In Gerdeman’s view, “Delta-8 THC is unambiguously illegal. There is nothing in the language of the 2018 Farm Bill that carves out Delta-8 from the Analogue Act.”
“They are calling Delta-8 a distillate, but it’s actually a reaction product,” Gerdeman explains. “You cook the CBD in a strong acid, and you’re converting it into something that it wasn’t. Whereas, with a distillate you take a complex oil and you’re removing part of it; it’s not a process that converts one product into something else. Distillation is a refining process, not a chemical reaction.”
The emphasis on synthesizing single-molecule cannabinoids doesn’t necessarily bode well for the future of artisanal cannabis.
He notes that Delta-8 should actually involve both chemical synthesis and distillation, since “a final distillation step is necessary after the chemical reaction is quenched, in order to remove chemical reagents and byproducts” (thus technically creating a distillate of a reaction product).
Gerdeman admits that this distinction is “debated within the industry, and there is a tilt in favor of calling it plant-derived to avoid the negative connotations of the word ‘synthetic.’ But to my mind, it’s a synthetic chemical reaction. What comes out as Delta-8 was not Delta-8 in the plant … This is drug development as far as I’m concerned — taking one molecule and turning it into another molecule. And once it goes down the avenue of drug development, it should be regulated as drug development is.”
Apart from the legal distinction, Gerdeman feels there’s a “truth in advertising” issue that needs to be acknowledged: “Retailers have gotten used to the language of the market, in which distillate is a refined extract rather than a chemically synthesized new product. Delta-8 is produced by synthesis because you’re creating something that wasn’t there before. That’s my perspective as someone who’s taught biology and chemistry. Whether it’s legal or not, consumers should know that it is a synthetic compound.”
Gerdeman is skeptical of claims that Delta-8 does not cause the paranoid reactions sometimes associated with THC intoxication. “I don’t think anyone should be buying this product under the misapprehension that they’re not gonna get too high if they overdo it,” he says, adding: “Delta-8 is being marketed with virtually no oversight. I don’t think there’s any reason Delta-8 should not be regulated as much as herbal cannabis. Companies have jumped through these loopholes, but the products are not audited for safety. Without more rigorous research and quality control, I would never vape a Delta-8 THC product.”
CONSUMERS AT RISK
Jim Prochnow, a Colorado-based attorney with the firm Greenberg Traurig, specializes in litigation concerning DEA and Food & Drug Administration regulations — often in collaboration with his son Justin, who also works at the firm. He tells Project CBD by email: “Both my son, Justin Prochnow, and I advise our clients on the issue of whether Delta-8 THC, also referred to as D8-THC, can legally be used as a dietary ingredient in food or in a dietary supplement. As I see it, all serious evaluation of this issue begins with the definition of ‘marijuana’ in the federal Controlled Substance Act and the definition of ‘hemp’ that exists in the Farm Bill of 2018 … If the compound is created in a laboratory or manufacturing facility from chemicals, it is highly likely that a court will consider the D8-THC to be not included in the definition of ‘hemp’… The DEA expressly adopted such a position in its Interim Final Rule.”
Prochnow adds that “the Government, including the DEA and FDA, is also likely to maintain that most, if not all, D8-THC substances are synthetic, not included in the definition of ‘hemp,’ and will be regarded as a Schedule I controlled substance because of … evidence that the amount of D8-THC in … finished products is well above any naturally occurring trace amount in the Cannabis Sativa plant.”
Yet despite their seeming illegality, Delta-8 products have taken off as the newest way to get high, and therefore “they require a regulatory structure in line with state medical and adult-use marijuana programs,” according to the Federation of Cannabis Unified Standards (FOCUS), which states flatly on its website: “Delta-8 is NOT Legal.”
And because Delta-8 products are federally illegal, “they are not required to contain warning labels or advice to the consumer on the potential for impairment,” says FOCUS. “It also means no one is monitoring the production of these products to assure only safe production practices are being used, or that the products being sold are of good quality.”
FOCUS warns that the lack of oversight “puts consumers at risk” and also jeopardizes “the unwitting business owners that are carrying these products, without an understanding of their own liability for selling them.”
It’s ironic that the chase after loopholes continues even as cannabis legalization has been achieved in numerous states — and the Holy Grail of federal legalization even seems, at long last, possible.
“The notion that you can interpret your way out of the Controlled Substances Act by chipping away at the plant one compound at a time seems like a strategy that has run its course and is doomed to failure,” says Project CBD director Martin A. Lee, author of Smoke Signals: A Social History of Marijuana — Medical, Recreational and Scientific. “It’s like picking at the scab of prohibition. Anything short of legalizing the whole plant, at this point, seems dubious.”
Delta-8 THC no doubt has medical value, but clinical data demonstrating what it’s good for is limited. Nor is it clear whether it can confer unique benefits beyond the remarkable – and federally recognized – therapeutic attributes of delta-9 THC (which is legally available nationwide as a single-molecule prescription pharmaceutical).
Medical patients and other consumers deserve easy access to a safe, well-regulated supply of cannabis-derived products, including Delta-8 options if they are effective, along with a wide range of CBD-rich and Delta-9-rich remedies. If there’s a market for “THC-lite,” then smaller concentrations of Delta-9 in combination with CBD should take the edge off of THC’s tricky psychoactivity.
Lee draws attention to another aspect of the current Delta-8 craze. “Claiming that Delta-8 THC is legal when it’s synthesized from hemp-derived CBD opens a Pandora’s Box of difficult questions that the cannabis industry will have to grapple with sooner or later,” he says. “If synthesizing Delta-8 THC from CBD is legal, then what about synthesizing Delta-8 from yeast-derived CBD, which is already technically possible? Would that also be legal – or desirable? Why not skip CBD altogether and synthesize Delta-8 THC or other minor cannabinoids directly from a yeast substrate? How would it help the fledgling hemp industry if these synthetic compounds aren’t actually produced by the cannabis plant?”
For now, Delta-8 THC might seem like an interesting play, but the emphasis on synthesizing single-molecule cannabinoids doesn’t necessarily bode well for the future of artisanal cannabis.