Delta-8 tetrahydrocannabinol (THC) offers the hemp industry commercial promise, with the potential for fresh markets and new products. But as delta-8 products increasingly land on store shelves and online shopping carts, they also invite legislative scrutiny and, in some cases, action.

Currently, Delta-8 is banned or restricted in Alaska, Arizona, Arkansas, Colorado, Delaware, Kentucky, Idaho, Iowa, Mississippi, Montana, New York, Rhode Island, Utah, Vermont, and Washington.

 according to Marielle Weintraub, president of the U.S. Hemp Authority, which certifies hemp products (and has recently decided not to certify delta-8 products). Meanwhile, legislative bans are brewing in other states, including North Dakota, Alabama and Oregon.

Florida lawmakers, moving in the opposite direction, have established a legal framework for delta-8.

States that have indicated they are likely to pass legislation banning D8 in the near future

Georgia – Though Georgia does have a limited medical marijuana program, their banning of synthetic cannabinoids in May 2010 indicates an attitude toward synthetic equivalents of tetrahydrocannabinols that may lead them to introduce legislation banning isomers and derivatives of tetrahydrocannabinols.

Louisiana – With relatively stringent medical marijuana regulations, including no smokable flower and a limited list of qualifying conditions, and a ban on synthetic cannabinoids since August 2010, it is likely that Louisiana will attempt to introduce legislation banning D8 in the near future.

Indiana – Considering Indiana’s complete lack of a medical marijuana program, it is a likely candidate for creating legislation aimed at banning the manufacture and distribution of D8.

Kansas – Synthetic cannabinoids have been banned in Kansas as of March 2010, making it one of the first states to introduce legislation that outlawed synthetic cannabinoids. Taking this into consideration, it is quite plausible that they would pass legislation banning D8.

Missouri – Similarly to Kansas and Louisiana, passed legislation banning synthetic cannabinoids in July 2010. Bearing this in mind, it is safe to say that the probability that Missouri will introduce legislation banning D8

Nebraska – Nebraska does not currently have any approved program for the public to access cannabis, including medical marijuana, and has only introduced medical marijuana legislation as of March 30, 2021. Considering their stringent views towards cannabis, we feel Nebraska is a prime candidate to begin creating legislation banning all tetrahydrocannabinols, including D8.

North Carolina – With no medical marijuana program, there is a strong likelihood of North Carolina attempting to pass legislation that bans D8 in the near future, though nothing has been discussed publicly as of yet.

South Carolina – Similarly to North Carolina, South Carolina does not provide access to medical marijuana for its residents and there is a good chance that they will choose to ban D8 and other tetrahydrocannabinols. 

Tennessee – Outlawed synthetic cannabinoids in July 2010, no MMJ program. Having banned synthetic cannabinoids in July 2010 and refusing to provide a legislative framework for citizens to have medical access to marijuana, Tennessee is quite intolerant of cannabis. That being said, we anticipate that this state will eventually create laws to ban D8.

Texas – Lacking any medical marijuana program or discussion of one, it is probable that Texas will institute legislation aimed at banning D8 and other tetrahydrocannabinols. Historically, the state tends to have an unfriendly attitude towards cannabis and a similar stance towards D8 can be expected. 

Wisconsin – Wisconsin’s medical marijuana program is limited to CBD products and provides no framework for THC products. Taking their previous perspective on tetrahydrocannabinols, the likelihood of them instituting some sort of ban towards D8 and other tetrahydrocannabinols is high.

Wyoming – Wyoming is one of the few remaining states to not pass legislation decriminalizing marijuana and there is no discussion on instituting a medical marijuana program for residents. The states preceding outlook on cannabis dictates that they will create a ban on D8 at some point.

The emergence of commercial delta-8 simultaneously thrills and worries hemp industry leaders. Prior to delta-8, no hemp products got people high.

The Farm Bill

“The [2018] Farm Bill passed with the understanding that hemp is nourishing, hemp could be food, used in supplements, used as fiber or grain. And hemp is not intoxicating,” Weintraub tells Hemp Grower. “Delta-8 defies the intention of the laws and the rules. I think it’s incredibly short-sighted and can bring down the entire hemp industry before we’ve had the chance to show people what this plant can do. Delta-8 makes me so angry.”

Erica Stark, executive director of the National Hemp Association, describes delta-8 as “complicated.” On the one hand, she acknowledges critiques of delta-8 that revolve around its psychoactive properties. The industry, she says, devoted years to convincing lawmakers that hemp was an extremely useful and versatile product, one that would deliver myriad commercial opportunities to farmers, manufacturers and stores, none of which involved people getting stoned. Delta-8 throws that into question.

But, on the other hand, she says, “anything that can help hemp farmers and entrepreneurs be successful is something we support.”

“People want it and should have access to it,” she says. “It’s a good use for excess hemp material. It might help businesses survive while we wait for regulations on CBD from the FDA, which should further open CBD markets.”

Stark says delta-8 is a topic of rising concern for the nonprofit. It is collaborating with members in different states and considering drafting model legislation for hemp stakeholders in states to offer in the event that lawmakers start holding hearings about the cannabinoid.

The market does not yet offer firm sales data surrounding delta-8. But Trevor Yahn-Grode of cannabis data analytics firm New Frontier Data told MedPageToday.com that retailers nationwide sold at least $10 million of the cannabinoid last year.

How Many Cannabinoids Does The Hemp Plant Have

Delta-8 is one of more than 100 cannabinoids found in the hemp plant. The most famous cannabinoid, delta-9 THC, is the compound in cannabis that tends to get people “high.” While botanists would call hemp and cannabis the same thing, the 2018 Farm Bill established a legal difference. If the plant contains no more than 0.3% THC (delta-9 and THCA) on a dry-weight basis, the federal government considers it hemp. Any amount above 0.3% and it’s not hemp—and not within the bounds of federal regulations.

Why does the hemp industry worry about delta-8, a cannabinoid derived from legal hemp? After all, the farm bill determined that all hemp-derived cannabinoids are hemp and not controlled substances.

Concern revolves largely around how delta-8 is produced. The cannabinoid is present in hemp, but in minuscule amounts. Extracting naturally occurring delta-8 from hemp for commercial production, at least for now, is not financially viable. Instead, manufacturers synthetically alter hemp-derived CBD through a chemical conversion that turns the cannabinoid into delta-8, allowing them to produce it in larger volumes.

In August 2020, the DEA released its interim final rule on hemp, stating that “synthetically derived tetrahydrocannabinols remain schedule 1 controlled substances.” But does the DEA consider delta-8 “synthetically derived”? If so, the agency has yet to take action against companies selling the cannabinoid.

Regulating Cannabinoids

The most well-known cannabinoid in the hemp plant is CBD, found now in supplements, tinctures, dog treats, salves and much more. That market booms. But as companies isolate and market more and more cannabinoids, such as CBG and now delta-8, the cannabinoid marketplace promises to expand, potentially dramatically so.

As new cannabinoids derived from legal hemp enter the market, federal agencies should steer clear, says Jody McGinness, director of operations at The Hemp Industries Association (HIA). The nonprofit is paying close attention to state actions, which are a “concern,” he says. McGinness adds that the HIA collaborates with state hemp associations to help them achieve their goals and “benefit the whole hemp economy.”

“To start ruling things out on the basis of this quality or that quality sells the hemp market short,” he says. Delta-8, he says, is “in the pantheon of things to be excited about with cannabinoids. Even our understanding of CBD is only an inch deep. We have only begun to explore what this plant can do.”

If federal and state agencies start asserting their authority in what he described as a “Wild West environment” every time a cannabinoid is introduced into the legal hemp market, he says, it will hamstring a nascent but blossoming industry.

“Delta-8 is a minor cannabinoid that can be extracted from hemp. We’d like to see a path to market. We don’t see it as complicated,” says McGinness. “The intoxication thing is the headline grabber. But the story is we need a framework to make sure hemp has its place and extracts have their paths to market.”

Adds Stark: “Who knows what will be discovered next? Delta-8 came out of nowhere [to the commercial market]. We are only scratching the surface of the more than 100 cannabinoids found in hemp. We need a single framework to address all of them.”

The FDA could deliver a big part of the potential framework for CBD, if not all cannabinoids from hemp.

The industry has been calling for an FDA ruling on hemp-derived CBD. The agency currently views the cannabinoid as illegal to add in all products outside of the pharmaceutical drug Epidiolex, in which CBD is an active ingredient. Just as manufacturers cannot add the active ingredient in Viagra, sildenafil citrate, into products like drinks, chocolate bars and tinctures, they also are technically forbidden from using CBD. But the FDA has so far taken a mostly hands-off approach with CBD.

In short, CBD is largely unregulated at the moment, existing in a legal limbo.

Regardless, enthusiasm for CBD turned downright effervescent after the passage of the farm bill, and it remains awfully fizzy. And fervor for delta-8 now is growing rapidly.

Jeff Greene, development director for The Florida Hemp Council, says delta-8 has played a large role in helping farmers sell their excess biomass in a flooded market.

“I have members that are deeply involved with it. I own a small interest in six retail stores in Florida, and I will tell you, delta-8 percentage of sales has increased between three- and four-fold in the last quarter,” Greene says.

Rather than the DEA’s or state regulators’ effects on delta-8, Greene worries more about battles between hemp, pharmaceutical and cannabis interests that could harm the cannabinoid’s role in the hemp industry.

Delta-8, he says, will infringe on the monopoly that cannabis currently has on people seeking psychoactive results from cannabinoids. At the same time, pharmaceuticals have interests in cannabinoids like delta-8. If the industries fail to collaborate and instead “shoot” at one another, “we’ll see a circle fight with nobody winning.”