The Feds Can’t Outlaw Delta-8 THC!

In the mid-1970s, the Dutch government initiated a permissive policy toward cannabis coffeeshops in Amsterdam and other cities, where locals and foreigners could purchase hash, weed, and “space cakes” (THC-rich edibles) for onsite consumption in a relaxed setting without fear of arrest. Even though recreational cannabis was – and still is – technically illegal in the Netherlands, the authorities tolerated the proliferation of cannabis coffee shops as an effective harm reduction strategy (better cannabis than injecting hard drugs).

But when I visited Amsterdam in the summer of 2010 while writing Smoke Signals, the city was beginning to lose its luster as a magnet for international cannabis tourism. A rightwing coalition had recently gained a majority in the Dutch capital, and meddlesome new restrictions, including a ban on tobacco smoking, were being imposed on cannabis coffeeshops throughout the city.

This was a bummer for those who prefer to roll some tobacco with their joints, as is common in Europe. It meant that the famous Dutch coffee shops would be less hospitable to many European cannabis consumers – and businesses would suffer.

“Do you expect that the authorities will also ban cannabis smoking in the coffee shops?” I asked Michael Veling, the gregarious proprietor of the 420 Cafe near Amsterdam’s Red Light district.

“They can’t outlaw cannabis smoking,” Veling assured me, “because it’s already illegal.”

Enter Delta-8 THC

More than a decade later, I’m reminded of that conversation as for-profit purveyors of Delta-8 tetrahydrocannabinol, a THC isomer chemically synthesized from hemp-derived CBD, fret over anticipated federal machinations to put the kibosh on the latest cannabinoid craze.

Gummies, tinctures, prerolls, and vape carts spiked with Delta-8 THC have become wildly popular, especially in states that have yet to legalize whole plant cannabis for medical or adult use. Delta-8 THC is a somewhat milder intoxicant than Delta-9 THC, the medicinal compound known for causing the high that cannabis is famous for.

Psst! The U.S. government can’t ban Delta-8 THC.

Why?

Because the Feds can’t outlaw something that’s already illegal.

The DEA can merely reiterate – as it did in its August 2020 interim final rule on implementation of the Farm Bill – that “All synthetically derived tetrahydrocannabinols remain schedule I controlled substances.” And that includes synthetically derived Delta-8 THC.

Synthetics & Semantics

But Delta-8 boosters claim that Delta-8 is federally lawful by virtue of an alleged loophole in the 2018 Farm Bill, which legalized the cultivation of industrial hemp (cannabis with no more than 0.3 percent THC). The Farm Bill, however, never specifically mentions Delta-8 THC, an omission that has been loosely interpreted and exploited by some segments of the hemp industry as giving a green light for manufacturing and marketing Delta-8 THC products that offer a (supposedly) legal high.

But Delta-8 THC in its natural form is present only in minuscule amounts in the cannabis plant. What’s flooding the unregulated market is synthetic Delta-8 that doesn’t actually come from the plant; instead it’s synthesized from CBD that has been extracted and isolated from hemp biomass. Converting CBD isolate into Delta-8 THC is not a natural process. It typically entails the use of toxic solvents, which raises quality and safety concerns.

The Feds can’t outlaw something that’s already illegal.

Regulators in Colorado, a pro-cannabis state, banned Delta-8 products from licensed cannabis dispensaries, dietary supplements, and cosmetics after the Colorado Health Department issued a notice in May 2021 declaring that “chemically modifying or converting any naturally occurring cannabinoids from industry hemp is noncompliant with the statutory definition of ‘industrial hemp product.’” Vermont’s hemp rules also explicitly prohibit the “use of synthetic cannabinoids in the production of any hemp-infused product.”

Several state legislatures have passed measures that define tetrahydrocannabinol as Delta-9 THC plus any of its natural or synthetic isomers. The consensus among most state lawmakers is that all these isomers, including Delta-8 THC, count as THC – and cumulatively they can’t exceed 0.3 percent by dry weight to qualify as hemp. Undaunted, Delta-8 promoters continue to cling to the dubious notion that Delta-8 is legal because it’s “derived” from federally legal hemp, even though there’s little to no Delta-8 THC in the hemp plant. What they actually mean by “derived from federally legal hemp” is that the process of making Delta-8 THC starts with the CBD in hemp biomass before it’s extracted, isolated, and chemically transformed into Delta-8 THC.

Christopher Hudalla of ProVerde Laboratories, an analytical testing company with offices in Massachusetts and Maine, debunks the idea that Delta-8 THC is legal because it’s “hemp-derived.” Just because the starting material may be legal, that “does not make the resulting product legal or safe,” says Hudalla, who notes that one can synthesize methamphetamine from legal, over-the-counter cold medicine, but this doesn’t mean that meth is legal.

Safety concerns

Delta-8 safety issues run the gamut from inaccurate labeling and high THC content to noxious solvent residues and reaction byproducts. Two thirds of Delta-8 THC products rcently surveyed by Leafreport did not contain the advertised amount of Delta-8, and more than half of these cannabinoid consumables contained more than the legally allowable amount of Delta-9 THC. “Overall, our investigation confirmed that Delta-8 products are mostly offered by inexperienced companies looking to make a quick buck,” Leafreport concluded.

Converting CBD isolate into Delta-8 THC is not a natural process. It entails the use of toxic solvents, which raises quality and safety concerns.

In addition to Delta-9 THC and Delta-8 THC, several unidentified compounds have turned up in Delta-8 products, along with chemical reaction leftovers and novel synthetic cannabinoids, which aren’t found naturally in cannabis. But they are prevalent in the unregulated Delta-8 market. Little is known about the impact of these impurities on human health.

“It’s all bathtub gin,” Hudalla told journalist Molly Longman. His lab has found up to 30 unknown components in a single Delta-8 product. These sketchy compounds are byproducts of converting hemp-derived CBD into Delta-8 THC. “Consumers are being used as guinea pigs,” says Hudalla. “To me that’s horrific.”

Neuroscientist Greg Gerdeman is also troubled by the lack of regulatory oversight of Delta-8 products. He maintains that it’s misleading to describe Delta-8-THC intoxication as merely a milder version of Delta-9-THC. Some people get anxious and paranoid if they consume too much Delta-8 THC, which “can make you really high, it’s just a matter of dosage,” says Gerdeman, who is president of NASHCX, a Nashville-based commodities exchange for hemp and its derivatives.

Among hemp industry proponents, there’s considerable disagreement about Delta-8 and what it means for the future of CBD commerce. Some are concerned that the spread of Delta-8 intoxicants could jeopardize political support for the fledgling hemp industry and undermine chances in Congress to overrule the FDA and greenlight CBD as a food additive and health supplement. The U.S. Hemp Authority refuses to certify Delta-8 THC or other synthetic products “derived” from hemp, while pretzel logician attorneys at the Hemp Industries Association (HIA) argue that Delta-8 is federally legal because the DEA hasn’t said it’s illegal. The HIA maintains that Delta-8 products should be regulated, not banned.

Bait & switch in Kentucky

Kentucky officials were blindsided by the proliferation of Delta-8 THC products in the Bluegrass State, where hemp has emerged as an important cash crop. “When hemp advocates first approached policymakers about legalizing hemp, they assured everyone that hemp was different than marijuana and that it was not an intoxicating substance,” said Sean Southard, a spokesman for Kentucky’s agriculture department. In a statement provided to Kentucky Today, Southard explained:

“Relying upon those assurances, the Kentucky General Assembly and the United States Congress passed laws legalizing hemp by creating a definition to separate it from psychoactive forms of cannabis that puts users in an altered state. Now some want to argue that lawmakers accidentally legalized an intoxicating synthetic substance called Delta-8 THC. This position is outside the mainstream, so much so that even Colorado – a state known for legalizing recreational marijuana – has banned Delta-8 THC products.

“Contrary to claims that Delta-8 THC is ‘natural,’ the truth is that there is no consumer product in existence that contains 100 percent naturally-derived Delta-8 THC. Delta-8 THC products do not contain compounds naturally extracted from the hemp plant. They contain synthetic Delta-8 THC compounds created in a lab. According to news reports, Delta-8 THC products can and are being made with battery acid and pool chemicals, are making people sick and have traces of harmful chemicals and metals. That’s why poison control centers in Virginia, Michigan, and West Virginia have issued bulletins warning about the toxicity of these products.”

Kentucky hemp operators were told they risked losing their business license if they flouted the law by distributing federally illegal Delta-8 products. They were warned that they could face criminal charges if they got involved in synthesizing a hemp-derived compound into an intoxicant. What happened next was predictable. On June 15, Kentucky State Police raided two hemp CBD retail storefronts and seized cash and Delta-8 products; store employees were charged with marijuana trafficking. This was the first of a series of police raids targeting Delta-8 stores around the Bluegrass State.

The Kentucky Hemp Association (KYHA) has filed a lawsuit seeking an injunction to prohibit state law enforcement agencies from busting more Delta-8 outlets. According to the KYHA, Delta-8 THC products are legal under state laws that regulate hemp production. Inaction from the courts, the lawsuit argued, could have a “potential billion-dollar impact to Kentucky’s economy, hemp growers, producers, and retail store owners.”

A lifeline for hemp farmers?

If nothing else, the popularity of Delta-8 consumables shows that there’s a significant market for ‘THC-lite’ type options – a noteworthy consumer preference that has largely been ignored by licensed cannabis companies fixated on high THC content. Delta-8 THC (two-thirds as potent as Delta-9) is said to comprise the fastest growing segment of the US hemp industry. It has proven to be a lifeline, however precarious, for hemp growers and CBD processors whose high hopes for lucrative earnings didn’t pan out after the passage of the 2018 Farm Bill.

Cannabidiol is a powerful molecule. It catalyzed a change in federal law and a revival of the US hemp industry. Cultivating legal hemp for CBD extraction was hyped as a boon for America’s struggling farmers, a cash crop that could fetch several hundred dollars more per acre compared to corn and soybeans. A huge market for CBD products seemed to beckon.

CBD’s meteoric rise as a global health supplement fostered exuberant fantasies reminiscent of the “Tulip Mania” outbreak that gripped 15th century Holland. Much like the Tulip craze of yore, the CBD saga is a stark reminder of the painful reckoning that follows unrealistic and unsustainable overvaluation of a commodity’s market potential. Seduced by the prospect of Colossal Big Dollars, newly minted US hemp farmers produced a glut of cheap biomass, which was processed into CBD isolate at an industrial scale. Overproduction and other miscues caused the price of CBD to plummet, which set the stage for the rise of Delta-8 and other synthetic THC analogues (such as Delta-10 THC and THC-O, a more potent intoxicant than Delta-9 THC) that are driving brisk sales in smoke shops, gas stations, and online retail CBD storefronts.

The Delta-8 phenomenon took off as producers sought to transform the oversupply of CBD into something profitable by turning it into a buzz-inducing analogue of THC. Some CBD brands were quick to jump on the ‘hemp with a high’ bandwagon – an ironic development given that CBD’s non-intoxicating properties had previously been leveraged to make the case that hemp, a versatile plant with thousands of industrial applications, isn’t the same as marijuana, which people smoke to get high.

Bypassing the plant

The enthusiastic embrace of synthetic Delta-8 THC as the commercial salvation for hemp growers and CBD retailers may be short lived, as several well-funded biotech companies are poised to unleash a deluge of CBD isolate, grown from yeast or another substrate, which will avoid the laborious, time-consuming process of actually cultivating cannabis. No need to worry about bad weather or plants that go “hot” (exceeding legal THC limits) if your CBD is fermenting in a factory.

Hemp-derived CBD isolate won’t be able to compete economically with mass-produced, synthetic single-molecule CBD.

From a bottom-line business perspective, producing CBD synthetically via yeast or another new-fangled patented laboratory technique has obvious advantages over plant-derived cannabidiol. If CBD-isolate (the starter material for creating Delta-8 and other THC analogues) is what you’re after, then soon it will be cheaper and more efficient to purchase CBD isolate created in a lab than to grow it in a hemp field and extract it from biomass. Lab-synthesized CBD avoids the Farm Bill-imposed hassle of trying to squeeze a cannabis crop under the 0.3 percent THC threshold, an absurd but legally required (and often futile) exercise, which is not optimal for a robust CBD harvest.

Simply put, hemp-derived CBD isolate won’t be able to compete economically with mass-produced, synthetic, single-molecule CBD. In the near future, the small shot of CBD that’s infused in gummies, vape carts, coffee, pet food, and countless other consumables will likely come from a lab, not a plant. Delta-8 THC and other minor plant cannabinoids could also be conjured straight from a genetically modified yeast substrate, sidestepping the need for hemp biomass or plant-derived CBD altogether. It’s hard to see how any of this would be advantageous for hemp farmers.

Biotech and pharmaceutical companies are salivating over the expectation that “biopharming” will be able to produce rare plant cannabinoids in much greater quantities than what’s found in nature – and that soon these medically relevant compounds will be available on a scale required to conduct clinical trials and eventually to supply a huge consumer market. What’s more, synthetically produced cannabinoids (aside from THC and its intoxicating analogues) are not classified as narcotics by the DEA or European officials and thus are “likely safer from a regulatory standpoint” than cannabis-derived compounds, according to Business Insider, which cites investment analysts who predict that the market for biosynthetic cannabinoids, including CBD, could skyrocket from around $10 billion in 2025 to $115 billion by 2040.

If all this sounds far-fetched, consider the fact that biosynthesized vanillin (4-hydroxy-3-methoxybenzaldehyde) supplies more than 99 percent of the global market for vanilla flavorings – with less than one percent coming from farmed vanilla. What differentiates natural vanillin from synthetic vanillin is not what it is as much as how it’s made – by a chemical reaction occurring within a vanilla plant or in a laboratory. The end result is the same compound. Meanwhile, vanilla farmers in Madagascar are becoming an endangered species.

Is the future of CBD vanilla?

The CBD industry is at a crossroads. Caught between the Scylla of chemically synthesized isolates and the Charybdis of single-molecule, biosynthetic cannabinoids, hemp growers face an uncertain future. The oncoming tidal wave of biopharmed CBD, favored by regulators, will devastate hemp CBD commerce by undercutting the need for plant-derived, single-molecule cannabinoids. But it won’t hurt – and may actually help – those who grow hemp for fiber, bast, hurd, and multipurpose seed oil. That was the original mandate of industrial hemp that got short shrift during the recent CBD stampede.

Most high-CBD hemp gets 90 percent of its genetics from marijuana – not hemp.

Cultivating hemp for CBD extraction is an artifact of marijuana prohibition. The distinction between low resin industrial hemp and high resin psychoactive cannabis (“marijuana”) has always been problematic with respect to CBD. According to a genomics study by the University of Minnesota and Sunrise Genetics (a hemp breeding company), most high CBD hemp – or “hemp wink wink,” as we like to say at Project CBD – actually gets 90 percent of its genetics from high resin marijuana, not low resin hemp. In the botanical world, what makes one plant marijuana and another hemp has more to do with the richness of resin content than the amount of allowable THC, as arbitrarily defined by prohibitionist lawmakers.

How will the impending hemp industry reset impact the high resin cannabis market and the development of CBD-rich products? It’s reasonable to expect that licensed cannabis dispensaries will feature more THC-lite type offerings in addition to the usual high-THC fare. Some of these products will include Delta-8 THC (in states that choose to regulate it as marijuana, not hemp).

It’s also possible, if not likely, that the global lunge toward synthetic CBD isolates and the appetite for “THC-lite” will create new niche opportunities for artisanal cannabis product-makers, who craft full-spectrum mixtures of THC and CBD with vivid terpene profiles and other embellishments that imbue the whole plant matrix with unique qualities that can never be fully replicated in a lab. When asked to compare the synergistic entourage effect of botanical cannabis with a cocktail of isolates concocted by biotechnicians, Dr. Ethan Russo put it this way: “What would you rather have? Fresh squeezed organic orange juice or Tang?”

​Martin A. Lee is the director of Project CBD and the author of Smoke Signals: A Social History of Marijuana – Medical, Recreational and Scientific.

Copyright, Project CBD. May not be reprinted without permission.