More states roll out bans on production, sale of delta-8 products

delta-8 THC, More states roll out bans on production, sale of delta-8 products

(A version of this story first appeared on Hemp Industry Daily.)

Delta-8 THC has become a runaway market hit – and more states across the country are responding by cracking down on access to the product commonly derived from hemp extracts.

From Alabama to Oregon, states are reacting to the popular products by:

  • Rolling out total bans to limit market access.
  • Considering measures to ban the products.
  • Setting potency limits on products containing delta-8 THC.

According to Marielle Weintraub, president of the U.S. Hemp Authority, a third-party product certification body, states will continue to ban delta-8 THC and other products like it because the cannabinoid is an intoxicant deemed a controlled substance under federal law.

“Do not produce or sell delta-8 products without a permit to produce or sell THC as a controlled substance,” Weintraub said.

“The correct path for the legal production and sale of delta-8 products is through a state-licensed adult recreational or medical marijuana operator.

“Hemp companies not doing this are risking their brand and business future, sanctions from FDA, FTC, USDA and EPA and possible enforcement actions from DEA and state law enforcement and regulators,” Weintraub added, referencing such governmental agencies as the U.S Food and Drug Administration, Federal Trade Commission, U.S. Department of Agriculture, Environmental Protection Agency and Drug Enforcement Administration.

She added that hemp operators manufacturing delta-8 THC will be barred from certifying products through the U.S. Hemp Authority.

Confusion reigns

The legal status of delta-8 THC – along with delta-10 THC, the newest minor cannabinoid creating excitement in the CBD market – has been confusing because of conflicting regulations.

Proponents of products such as delta-8 and delta-10 THC argue that the 2018 Farm Bill states all hemp-derived cannabinoids fall within the definition of hemp, which is a legal crop and no longer a controlled substance.

However, the DEA issued an interim final rule in late 2020 declaring: “All synthetically derived (THC) remain Schedule I controlled substances.”

Because delta-8 THC is manufactured from hemp-derived CBD, not extracted directly from the hemp plant, it is a controlled substance under law, according to the DEA.

“From a chemist’s perspective, it is clear that the isomerization of CBD to delta-8 THC with a catalyst is a chemical process,” said Erik Paulson, lab manager at Infinite Chemical Analysis Labs, a cannabis testing laboratory with locations in California and Michigan. “Any product of a chemical reaction like this one is, by definition, a synthetic chemical.”

At least five states have considered or are currently updating their laws to specifically govern delta-8 THC, joining at least 11 that already have laws on the books addressing the minor cannabinoid, which can produce psychoactive effects in some people, although they are considered to be less potent than the delta 9-THC common in marijuana.

The states that currently ban delta-8 THC entirely include Alaska, Arkansas, Arizona, Colorado, Delaware, Idaho, Iowa, Mississippi, Montana, Rhode Island and Utah.

However, because delta-8 and delta-10 THC remain listed on the DEA’s Controlled Substances List as Schedule 1 controlled substances, along with delta-9 THC, they remain illegal in all 50 states, Paulson said.

“Some have interpreted the 2018 Farm Bill as the legalization of these other cannabinoids because delta-9 is the only cannabinoid explicitly listed,” Paulson said.

Here is a breakdown of state delta-8 measures:

Alabama

Hemp industry members in Alabama praised state lawmakers when they rejected proposed amendments in late April that would have banned delta-8 and delta-10 THC products as controlled substances.

In a bill that would ban antidepressant tianeptine in the state, the Alabama Senate Judiciary Committee allowed an amendment to be tacked on that would have also banned delta-8 and delta-10 THC.

After members of the Alabama hemp industry complained, that amendment was removed by the bill’s author, according to Alabama Political Reporter.

However, a similar amendment was proposed as an addition to the state’s medical marijuana bill, which would have designated all THC as a controlled substance within the state.

That amendment, recommended by state Attorney General Steve Marshall, was tabled by the House Health committee.

Illinois

The Illinois House of Representatives passed a measure in mid-April that would regulate delta-8 THC and other products.

The bill’s sponsor, state Rep. Bob Morgan, said the products represent a “public health crisis.”

”Thousands of people in Illinois are buying products labeled as CBD, delta-8 or other hemp derivatives without any way of being sure what these products contain. Some may not contain any CBD or hemp at all,” Morgan said.

Illinois legalized recreational marijuana in 2019.

Kentucky

A top hemp-producing state, Kentucky made news last month, when the state’s agriculture department clarified that delta-8 THC is a controlled substance.

In a letter to Kentucky hemp license holders, Agriculture Commissioner Ryan Quarles responded to inquiries to the state agriculture department by saying, “Distributing products containing (delta-8) is illegal, and distributing such products could lead to your expulsion from the Hemp Licensing Program as well as potential exposure to criminal prosecution.”

Quarles cited federal law, saying, “Because Delta-8 THC is a Schedule I controlled substance under federal law, it remains a Schedule I controlled substance under state law,” adding that Kentucky has not enacted any law to create an exemption to the state’s controlled substances act.

North Dakota

A surge in demand for delta-8 THC prompted the North Dakota Attorney General’s office to propose changes to the state’s hemp regulations in late April.

One section of the state’s bill would immediately ban delta-8 THC, according to Fargo TV station KVRR.

Hemp operators are asking legislators to consider regulations that won’t ban delta-8 for patients using it for health benefits.

Oregon

Though Oregon legalized recreational marijuana in 2014, the state does not have the same regulations in place for delta-8 THC, which has raised concerns both in the hemp industry and among state regulators who want to see more research done on the effects of the minor cannabinoid.

A measure introduced in the state House would regulate delta-8 THC and allow the Oregon Liquor Control Commission, the regulatory body that oversees cannabis, to set potency limits on artificially derived cannabinoids and clarify testing requirements for consumable products containing hemp-derived cannabinoids.

The bill, which has gained bipartisan support, would establish a task force exploring how new cannabis products including delta-8 THC fit into Oregon’s legal cannabis market, reported Portland TV station KOIN.

Hemp Industries Association President Rick Trojan argued in written comments that the bill would “destroy Oregon’s hemp industry overnight.”

Trojan said subjecting federally legal hemp products to the same “burdensome regulations” as federally illegal marijuana “doesn’t make sense.”

Vermont

State regulators in Vermont also recently reminded residents about the legal status of delta-8 THC.

In an April 23 email to registered hemp growers, the Vermont Agency of Agriculture, Farms and Markets said delta-8 THC products are not legal under its published state rules, which state that processors are prohibited from using “synthetic cannabinoids in the production of any hemp product or hemp-infused product.”

Making delta-8 THC products in Vermont would violate state law, the agency clarified.

Washington state

Lab-created products made from hemp are temporarily banned in the state, according to a policy statement issued last week by the Washington Liquor and Cannabis Board (WLCB), the regulatory body that oversees cannabis products.

But the board’s position is “advisory” and requires more discussion about whether federal drug law applies to compounds such as delta-8 THC and delta-10 THC, which are derived from hemp.

The WLCB said April 29 that it would work with companies producing and selling cannabis products through a formal rulemaking process that will begin this month.

According to a statement from the board, the ban was driven in part by safety concerns and a lack of mandatory testing standards and potency or concentration limits.

The state’s licensed marijuana growers requested the prohibition of delta-8 THC products, saying they were being forced out of the market by cheaper, illegal products, reported The (Spokane) Spokesman-Review.

But not everyone in Washington’s marijuana industry is against delta-8 THC.

In a February letter to the WLCB, the Washington Cannabusiness Association requested that its policy not rule out delta-8 THC completely.

“The focus should be on incorporating all things cannabis into the regulated system in a safe manner; this includes delta-8 THC,” wrote Vicki Christophersen, the association’s executive director.

Laura Drotleff can be reached at [email protected].