The Delta-8 Controversy

Delta-8Even as the edifice of cannabis prohibition crumbles state by state, the federal illegality of the plant and its psychoactive compound THC continues to drive a quest for loopholes in the relevant statutes.

The latest such legal artifice concerns Delta-8 tetrahydrocannabinol — a less potent cannabinoid than the more common and notorious Delta-9 THC. Is there truth to the claim that hemp-derived Delta-8 THC was inadvertently legalized by the 2018 Farm Bill?

The craze...
Delta-8 THC is suddenly everywhere, like CBD a couple of years ago—from upscale boutiques to truck stops.

The Chicago Sun-Times this month 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 vaping cartridges, as well as smokable hemp flower sprayed with Delta-8 extract." 

Emporia such as the Wake-N-Bakery coffee shop in Lake View "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."      
And indeed, there are similarities in the legal situations of Delta-8 today and CBD before passage of the 2018 Farm Bill. Then, retailers were asserting that hemp-derived CBD was actually federally legal pursuant to the 2014 Farm Bill's Industrial Hemp Research Amendment.

While there was little effort to crack down on suddenly ubiquitous CBD products, the courts did not agree with the industry's claims. The Hemp Industries Association argued thusly in federal court earlier in 2018. The case, HIA v DEA III, was rejected by the 9th Circuit Court of Appeals on procedural grounds.

Nonetheless, hemp-derived CBD was explicitly legalized under the Farm Bill signed into law by President Trump at the end of that year, making the matter moot.

The difference is that this time, a crackdown is underway — and there is no initiative on Capitol Hill to clear up the legal ambiguity.

...and the crackdown
In one of a few such cases around the country, local WYFF in Laurens County, South Carolina, reported in March that police in the town of Clinton seized an inventory of Delta-8 products from a vape shop. "They just told me point blank that they had it tested, it broke the law, so they’re taking my stuff," TSR Vape Shop owner Robert Oggenfuss told WYFF.

In typically garbled verbiage, WYFF states: "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."

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 authorities considered them equally illegal anyway.

Some states are moving to remove all ambiguity. The Alabama Political Reporter informs us that the legislature in Montgomery is considering a measure that would add Delta-8 and Delta-10 to the state's controlled substances list. The measure, which has cleared the Senate Judiciary Committee, is (as we might imagine) 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 counter-claims are hot and heavy.

The small print taketh away? 

Typical boosterism is displayed in a February 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. Additionally, newly-proposed regulations from the Drug Enforcement Agency (DEA) would classify delta-8 THC as a schedule I controlled substance, making it illegal federally and forestalling its market potential." 

These new regs are in the DEA's Interim Final Rule for CBD and other hemp derivatives issued last August. Enitled "Implementation of the Agriculture Improvement Act of 2018," the proposed rule explicitly states: "The AIA [i.e. 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 Δ9-THC is not a determining factor in whether the material is a controlled substance. All synthetically derived tetrahydrocannabinols remain schedule I controlled substances."

So the question hinges, to a large extent, on whether the Delta-8 in question is "synthetically derived" — and 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 derived from another cannabinoid that is directly extracted from the plant. 

Also at issue is the 1986 Federal Analogue Act, which states that a chemical analogue 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 would appear to mean that the provisions of the 1970 Controlled Substances Act (CSA) that make Delta-9 a Schedule I substance also apply to Delta-8.

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 Schedule I. This is the narrow point seized upon by the Delta-8 boosters. 

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, but the DEA's classification of "waste hemp material" (which may contain THC) as a Schedule I substance.

On his blog, Kight writes that "Δ8THC from hemp is not a controlled substance under the federal Analogue Act (AA)... The AA provides for any chemical that is 'substantially similar' to a controlled substance listed in Schedule I or II of the be treated as if it were listed in Schedule I when intended for human consumption. There are several reasons that hemp-derived Δ8THC is not a controlled substance under the AA."  

But the most central is his first point — that "the CSA expressly provides that 'tetrahydrocannabinols in hemp' are not controlled substances... This specificity in the CSA as to THC in hemp overrides any contrary general provisions in the AA."

This is the text of the CSA as amended by the 2018 Farm Bill. And again, this in turn hinges on whether the Delta-8 now being marketed is, in fact, "in" hemp — or is it synthesized from "tetrahydrocannabinols in hemp"? 

Project CBD spoke by phone to Kight at his office in Asheville for a better picture of 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 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 repeats some oft-heard claims about the effects of Delta-8: "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 lack of oversight for a product that is falling through legal cracks is a concern.

"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."

Well, maybe not
Greg Gerdeman is a Florida-based neurobiologist active in the Medical Cannabis Network. He tells Project CBD that in his 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 it a distillate, but it's actually a reaction product," Gerdeman says. "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."

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 as out as Delta-8 was not Delta-8 in the plant."

Apart from the legal distinction, Gerdeman sees a "truth in advertising" issue here. "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 does acknowledge potential medical applications of Delta-8. He points to a 1995 study in Life Sciences journal (actually co-authored by Raphael Mechoulam, the legendary Israeli scientist who first isolated THC and CBD), which did find that Delta-8 has powerful anti-emetic properties.

But he's skeptical of the claims that Delta-8 does not cause the paranoid reactions often associated with THC intoxication. "I don't think anyone should be buying this product under the mis-apprehension that they’re not gonna get too high if they overdo it," he says.

He also has concerns that Delta-8 has not received sufficient study, and 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."

And he again views those loopholes as dubious at best. "Just because something is found in cannabis doesn't mean this mini-pharma enterprise is given the green light. I certainly don't think that was the intent of Congress. 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."

Legal authorities from Missouri
Jim Prochnow, a Colorado-based attorney with the firm Greenberg Traurigspecializes 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..."

He 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."

This skeptical view is echoed by the Federation of Cannabis Unified Standards (FOCUS), which states flatly on its website: "Delta-8 is NOT Legal."

The FOCUS statement elaborates: "Contrary to what we hear from the media, see in the stores, or learn from cannabis operators; and despite the incredible amount of Delta-8 THC products being sold across the country today, there is absolutely no grey area around the legality of Delta-8 THC... Delta-8 is considered a Schedule 1 Controlled Substance by the US Drug Enforcement Administration (DEA)... Because these products cause intoxication, they require a regulatory structure in line with state medical and adult use marijuana programs. Despite the illegality, Delta-8 products have taken off as the newest way to get high. Since the distribution of Delta-8 products is not controlled, these products are being marketed and sold as if they were typical legal hemp products containing non-psychoactive cannabinoids..." 

FOCUS emphasizes that the lack of oversight "puts consumers at risk." Depicting a wild-west atmosphere, the page states: "Unsuspecting consumers are being offered Delta-8 'shots' in their morning coffee at their local coffee shop while on their way to work, with no warning about the potential for impairment or how it might impact the ability to drive. Delta-8 gummies and vape cartridges are being sold in incredibly high doses to teenagers in vape shops and gas stations as if they are harmless hemp products that do not get you high. Not only are the consumers of these products being put at risk, so are the unwitting business owners that are carrying these products, without an understanding of their own liability for selling them."  

"Because Delta-8 products are federally illegal, they do not fall within existing regulations for hemp products, which means they are not required to contain warning labels or advise to the consumer on the potential for impairment," FOCUS protests. "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."
Loopholes versus legalization
The same dilemma can be seen in the media hype of recent years about so-called "synthetic marijuana." Marketed under names such as "Spice" or "K2," this stuff is just any old herbaceous substance (oregano, catnip, whatever) treated with a synthetic chemical concoction designed to mimic (however crudely) the effects of THC. New chemical compounds are developed to stay ahead of the law; when one compound is outlawed, manufacturers just tweak a molecule or two. 

The Analogue Act was passed precisely to undercut such attempted subterfuges. However, use of the statute against manufacturers of "synthetic marijuana" has met with mixed results, because some of the compounds in question have strayed far enough from THC that they may not be considered "analogues." Obviously, this is not the case with Delta-8, which is indeed THC — technically, it's an isomer of Delta-9, which means the molecules are made up of the same atoms, but they are arranged differently.

The quest for loopholes can also be seen in the persistent stoner folklore that cannabis indica is actually legal because federal law only references cannabis sativa. The legendary botanist Richard Shultes actually testified in court to this effect on behalf of cannabis defendants in the 1970s. But the courts 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.

There's a particular irony that the chase after loopholes continues even as actual cannabis legalization has been achieved in several states — and the Holy Grail of federal legalization even seems (at long last) possible

This is emphasized by Martin Lee, Project CBD director and author of Smoke Signals: A Social History of Marijuana — Medical, Recreational and Scientific. 

"This 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 has run its course and is doomed to failure," Lee says. "Rather than interpreting existing law to claim that something is already legal when it's actually not, the whole plant needs to be legalized. Anything short of that, at this point, is foolhardy and counterproductive." 
Cross-post to Project CBD

Image of THC molecule via Boston Hempire


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