If you’ve been in a convenience store, gas station or smoke shop lately, you may have noticed an interesting new product on the shelf…cannabis. Even in states like Indiana and North Carolina, where they don’t have medical cannabis access let alone adult use, cannabis products are popping up everywhere. And if you spend any time on social media, you have likely been hit up to order products boasting a cannabis high in your feed. So what gives? Did cannabis become federally legal and you just missed the memo? Nope. What you are seeing are products that contain intoxicating cannabinoids, but derived from the hemp plant, which has been federally legal since 2018. “Hemp” is defined as a cannabis plant with less than .3% THC, but necessity breeds innovation, and a few years ago, folks figured out that by changing the structure of CBD found in hemp, they could create compounds that mimic the effects of naturally occurring cannabinoids like Delta 9 THC in cannabis. So, let’s get into it. What are hemp derived cannabinoids? Are they legal? And maybe most importantly, are they safe?
In 2018, the Farm Bill declared that any cannabis plant containing less than .3% THC was designated as hemp, and federally legal. At the time, hemp was primarily grown for industrial purposes like animal feed, paper and rope. The harvesting of hemp for the cannabinoid CBD was just beginning to grow as a sector of the industry. There was no reason for regulators to assume that hemp would be grown for the production of intoxicating cannabinoids. Then, a few years ago, a discovery was made that CBD extracted from hemp could be transformed into a compound with similar effects of Delta 9 THC, which is naturally occurring in the cannabis plant through a process of isomerization. This new compound was named Delta 8 THC, and, by default because it came from a federal legal plant, was also federally legal. But it didn’t stop there. Soon other compounds were being developed from CBD including THC-O, HHC, and a synthetically derived version of good old Delta 9. Because these compounds do not naturally occur in hemp flower, the products containing them were more often edibles and vape cartridges. Although recently there has been the proliferation of hemp flower sprayed with these compounds available on the market. Furthermore, THCa (the non-psychoactive, non-decarbed form of THC) has been popping up as isolate and distillate. The argument is that THCa is NOT THC and therefore not subject to the .3% rule that defines hemp. Of course, once these products are heated, the THCa becomes its intoxicating counterpart THC. Confused yet? You’re not alone. Everyone from the Feds down to state governments have struggled with how to address these new products. The result so far has been largely hands off from the Feds and agencies like the FDA and CDC save for health warnings on their websites. States have become a patchwork of regulation with some states banning these products completely, and others seeking ways to fold them into their legal cannabis programs.
Technically, yes. These compounds are derived from a plant that is federally legal, and the definition of “hemp” states that it is any plant with below .3% Delta 9 THC. Because these compounds are made synthetically from hemp plants, they are included in the definition of hemp. The DEA has made statements that they intend to ban synthetically derived cannabinoids, but no action has been taken yet. And while the FDA did send warning letters to companies selling Delta 8 THC products, they were more concerned with misleading medical claims than the actual legality of the product. At the state level, hemp derived cannabinoid products are banned in 13 states including states where adult use cannabis is legal such as CO, WA and and AZ. A host of other states are trying to regulate these products including cannabis legal states like VT and MN and states with no legal cannabis market like KY and TN. Other states have taken a hands off approach like IN, IL and GA. Although Georgia recently filed a $150M class action lawsuit against companies they say are selling these products in their state. California, which had banned these products, has begun looking at ways in which the hemp derived cannabinoid market might be folded into the legal cannabis industry, claiming this would both make these products safer and give licensed cannabis businesses another avenue for commerce and revenue. And if you spend any time on social media, you will surely see paid advertisements for hemp based products, a service not even available to state legal cannabis companies. So, back to the question, are these products legal? The answer is: it’s complicated, but we are likely to see more defined regulations at the federal and state levels shortly, mostly due to the health concerns outlined in the next section.
Before cannabis regulations were enacted, the consistency, potency and safety of manufactured products varied wildly. In early medical cannabis dispensaries in California, edible selections mimicked bake sales with brownies and other treats made in home kitchens and presented to consumers in nondescript cellophane wrapping. Dosing instructions included, “eat about a thumbnail’s worth,” and information about ingredients was very hard to come by. One of the benefits of legalization is that now, when you go into a licensed dispensary, the edibles are properly packaged, labeled and tested, with each piece containing the same amount of THC properly stated on the label. And while not all manufactured products pre-legalization were dangerous, there was no way to ensure that they weren’t. We are in a similar situation now with hemp derived products. In most states hemp derived products are of unknown safety, potency and quality, which poses a health risk to consumers. Between 2020 and 2022, the FDA received 104 adverse event reports related to hemp derived products. Over half of these events required medical attention and reported symptoms included hallucinations, vomiting, tremor, anxiety, dizziness and loss of consciousness. Between 2021 and 2022, the National Poison Control Center received nearly 2500 calls about adverse reactions to hemp derived products, 70% of which required medical attention and one, involving a child, ended in death.
Like unregulated cannabis vape cartridges which were largely responsible for the lung injury disease EVALI, it is not necessarily the hemp derived compound itself that poses the risk (although we do not have scientific evidence of the safety of these compounds). It is the fact that the process for making these products, which is largely unregulated, includes the use of dangerous chemicals not suited for human consumption, especially not through inhalation by smoking or vaping. The process for making these compounds may be taken on by people who do not have the expertise or experience in ensuring that these chemicals are completely removed from the final product. Because many states do not regulate these products, they are not being tested to ensure that they are safe. Last year, a lab in MA tested 5000 samples from Delta 8 THC products and found contamination in 100% of them. Some had up to 30 types of bi-products with unknown toxicity. Minnesota is a state that has taken a proactive approach by developing licensing, labeling and testing requirements for hemp derived products. They restrict sales to those over 21 and require businesses that sell these products to register with the state. But in most states, such regulations do not exist and the ability to ship these products over state lines means that even in states with regulations, consumers can access highly potent products online and have them shipped to their door.
Look, I get it. I grew up in Indiana and in Chicago during prohibition. And if these products had been available to me at the time, 21 year old Amanda would have been all over it. And indeed, according to the 2023 Consumer Survey from New Frontier Data, consumers who live in illicit markets were more likely to have heard of Delta 8 THC, and to have tried it. This all points back to the fact that prohibition doesn’t work. As long as there is consumer demand for intoxicating cannabinoid products, companies will find ways to provide them, whether that’s buying a baggie from a guy in a parking lot, or ordering meticulously packaged gummies from Instagram. The only real solution here is to regulate these products, ensure their safety, and allow them to become a legal and safe part of state commerce and the growing cannabis industry. Until that happens, we will continue to see companies skirt best practices and states wring their hands as consumers take their chances.
For more, check out our Truth About the Plant video on Delta 8!
