Hurting hemp farmers wondering what to do with all that overproduced hemp from even 2019 seemed to have found a loophole big enough to drive a Grateful Dead concert into.
It’s saving many a hemp farmer. It’s moving from marijuana dispensaries to CBD-only shops. Hemp CBD companies whose sales flattened during COVID have suddenly found the next shiny thing.
“There’s a lot of momentum around delta-8,” said Tim Gordon, chief science officer at Functional Remedies, a leading hemp CBD brand based in Colorado that also grows its own and which recently rebranded its flagship products as Synchronicity. “It’s being shipped internationally.”
Sales seem to be especially brisk in the 14 states that have no access to marijuana markets, be it medical or recreational. There are 36 states with legal medicinal marijuana, and 14 states that go full legal adult-use, or recreational.
THC is, of course, the intoxicating cannabinoid in the cannabis plant that fairly defines marijuana.
Technically, THC is named delta-9 tetrahydrocannabinol. It is considered a Schedule 1 drug by the DEA—the most restricted drug there is.
But according to the 2018 farm bill, except for delta-9 THC levels north of 0.3% by dry weight, every other part of the cannabis plant is free and easy.
Enter delta-8 THC. There are some small but notable differences between delta-8 and delta-9. One is the difference between the 8 and 9—this refers to the site of the double bond on the carbon chain on the larger compound. The molecular formula is C21H30O2. Delta-9 is also less stable, such that it tends to degrade over time to delta-8.
Apart from this chemistry lesson, there’s the physiology—delta-9 gets you high. Delta-8? Well, actually—some people call the minor cannabinoid CMC, short for cotton-mouth cannabinoid. It does, in fact, get you high. A little. Some people say it’s a lighter buzz. Others assert there’s less sense of paranoia than get-high weed’s delta-9 THC.
And because of the farm bill tacitly making legal any part of cannabis other than delta-9 THC, delta-8 is being sold. And not only in marijuana dispensaries, but CBD-only shops, online, gas stations, kratom stores, even natural food retailers.
The CBD buzz, only with an actual buzz
And that is raising its profile with regulators almost as fast as its brisk sales on the open market.
The problem is, the farm bill explicitly says only delta-9 THC is forbidden. That would take an act of Congress to make delta-8 illegal. Of course it’s anybody’s guess how quickly that could happen. Short of a scandal, we’ll take the over on that.
Oh, did someone say scandal waiting to happen?
Turns out, the completely legal way to produce delta-8 THC is by using hemp as a source. But one of the popular ways to make delta-8 THC products is by producing the compound synthetically. Another is by taking a hemp bud and spraying it with delta-8 isolate. Hey presto—marijuana lite! Hello, DEA.
The U.S. Hemp Roundtable, the group that lobbies governments, is opposed to delta-8 THC, farm bill loophole notwithstanding. It says delta-8 is too close a kissing cousin to marijuana for comfort—and unduly invites the DEA to get into the hemp business.
“Unlike marijuana, hemp is, by definition, not intoxicating,” said the Roundtable in a March 8 statement. “Hemp products like CBD are popularly used by consumers to benefit their general health and wellness, not to get them high.”
The Roundtable is pushing for hemp CBD to be sold exclusively as a dietary supplement. That’s because a regulatory structure, the 1994 Dietary Supplements Health and Education Act (DSHEA), is already in place to hold hemp CBD as a supplement. The same does not quite exist to allow what the FDA has approved as a pharmaceutical drug for integration into foods and beverages.
“Adult-use cannabis products,” said the Roundtable, “which feature concentrated THC and are intended for intoxication, should not be marketed as dietary supplements, and should be subject to a distinct regulatory pathway.”
This has created a split in the hemp industry. The Hemp Industries Association, for example, advocates for the entire hemp plant including naturally occurring cannabinoids that can be derived from it. The HIA's position is that the potential of these hemp products is only just beginning to be explored, and the organization advocates for investments in research and development in order to learn more about the increasing number of major and minor cannabinoids. Consumer access to hemp is key.
Accordingly, the HIA is not joining the Roundtable’s effort to exclude delta-8 as a supplement.
At the same time, the Hemp Industries Association has filed suit to get the DEA out of the hemp regulatory business altogether, per the 2018 farm bill. The drug agency was re-inserted back in the regulatory game when the USDA ruled it had standing.
In addition, labs are reportedly having a difficult time teasing out the differences between delta-8 and delta-9 THC.
Hemp brand Functional Remedies took a delta-8 product and sent it out to three different labs. They received back three different reports with three different numbers.
And if labs are having difficulty, how will regulators at the DEA think about splitting hairs between delta-8 THC and delta-9 THC? It’s all THC to them, right?
Plus, some companies are using natural re-agents in processing, sometimes using agents like red phosphorus that are both potentially hazardous and labs have no idea what to test for.
“It is intoxicating,” said hemp doyenne Annie Rouse, chief operating officer at the hemp contract manufacturer OP Innovates, as well as CEO of hemp brand Overcome and co-founder of online CBD store Anavii Market. “Not as much as delta-9, but without proper warning labels it’s potentially hazardous to consumer safety.
“On the other hand,” she said, “it’s keeping farmers afloat right now.”