“Scientific knowledge is in perpetual evolution; it finds itself changed from one day to the next.” This quote from Jean Piaget, a Swiss developmental psychologist, sums up the evolution of cannabis in the United States since 1996, when California became the first state to legalize medical marijuana. The evolution of the cannabis industry has been incredible over the past 25 years.
In 2018, this evolution reached warp speed following the legalization of hemp under the 2018 Farm Bill. Today, consumers find a wide array of cannabis products available for purchase including the influx of delta-8 products on the market. Although it is almost impossible to visit a CBD store without seeing delta-8 products, their legality remains murky, at best, throughout the United States. Anyone manufacturing and selling delta-8 products should proceed with great caution as the laws evolve to catch up with the products themselves.
What is Delta-8?
Delta-8 tetrahydrocannabinol is a cannabis compound with characteristics similar to delta-9 tetrahydrocannabinol, the main compound in marijuana that provides consumers with a high feeling. Although both are forms of THC, when most people talk about THC in marijuana, they are referring to delta-9.
Delta-8 can cause effects similar to delta-9 in marijuana products, but much less potent. Delta-8 is often said to provide the same effects as the less-potent marijuana of yesteryear when compared to the higher-potency marijuana on the market today. Therefore, the consumption of delta-8 products can still provide the consumer with a “high” feeling, unlike hemp-based CBD products available today. This has caused many states to act swiftly to make delta-8 illegal unless legally sold as marijuana, which should also cause delta-8 companies to operate within a compliance framework similar to marijuana companies.
Legal and Regulatory Concerns
When the 2018 Farm Bill was passed, hemp was removed from the federal definition of “marijuana” and was defined as “the plant species Cannabis sativa L. and any part of the plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” (Emphasis added.) In response, the U.S. Department of Agriculture issued its Interim Final Rules in which it made clear that in order to be legal, “the THC concentration of all hemp must meet the acceptable hemp THC level. Samples must be tested using post-decarboxylation or other similarly reliable analytical methods where the total THC concentration level reported accounts for the conversion of delta-9 THCA into THC.”
This was in direct response to concerns that products with high levels of THCA, which can convert into delta-9 when heated, may still be legally manufactured and sold as hemp so long as the actual delta-9 concentration is legal. As the interplay between delta-9 THC and THCA evolved, so did the regulatory framework, including the issuance of additional interim final rules from the DEA and the Department of Agriculture that made clear that products manufactured from cannabis must not exceed 0.3% THC when using a calculation that includes a sum of the product’s delta-9 THC concentration and 87.7% of the product’s THCA concentration.
Although it took more than two years, the regulatory framework caught up with the science, resulting in the delta-9 THC concentration formula used today to determine what is legal hemp under the 2018 Farm Bill.
Influx of Delta-8
But recently, the cannabis industry experienced another scientific evolution involving products containing high levels of delta-8 THC. Under federal law, cannabis-infused products that do not exceed 0.3% delta-9 THC are legal throughout the United States. But delta-8 THC products, which are technically legal hemp, can provide a similar experience as low-grade marijuana. Since most state hemp plans only regulate the cultivation of hemp, most delta-8 products are legally available without the same restrictions on marijuana.
Seventeen states have already made it illegal to sell delta-8 products or restricted them to being sold like marijuana. Four states have bills pending to do the same. Yet many states have no laws prohibiting delta-8 products, including many states that have not yet legalized recreational marijuana. For the time being, consumers in these states may legally purchase products with similar effects as low-grade marijuana because they are hemp products, defined by their delta-9 THC concentration, despite marijuana remaining illegal.
The legal and regulatory landscape will eventually catch up with the scientific evolution; therefore, the hemp industry must proceed with great care. The safest way for businesses to sell delta-8 products is as though they are marijuana because the current trend is for states to legally treat delta-8 as a marijuana product. In order to do this, delta-8 sellers should restrict sales to those who are least 21 or older. Retailers should also track their delta-8 product sales and limit the volume that may be purchased by a consumer each day. Companies should also ensure that all inventory is thoroughly tracked and securely stored to avoid the potential for diversion. Everyone working with delta-8 should adopt and implement compliance policies and procedures employed by the marijuana industry, where it is legal, to not only ensure that delta-8 products are handled in a safe and secure manner, but also have the regulatory frameworks in place to ensure full compliance when the laws change. If marijuana eventually becomes legalized, then the company will also be able to rely on its experience with delta-8 as part of a marijuana license application later.
As the science of the cannabis industry continues to evolve, so will the legal and regulatory requirements, and operating now in a regulatory and compliance manner similar to a licensed marijuana company will minimize the risk of liability and better position the company for the day that delta-8 is regulated. Compliance is the key to the operation of a successful cannabis business and delta-8 companies have an extraordinary opportunity to get ahead of their regulatory obligations before they are even put in place.