What brands need to know about Delta-8 THC

Just how big a threat does Delta-8 THC pose to cannabis brands? In recent months, the once obscure chemical has become the center of a controversy that’s roiling the industry.  

What is Delta-8 THC?

First a bit of background: Delta-8 THC is an intoxicating cannabinoid said to offer a high that’s similar to THC, but milder and, for some users, with less paranoia. It’s typically produced by mixing CBD with a chemical catalyst, essentially accelerating the CBD’s natural breakdown. Similar processes can apparently be used to produce Delta-10 THC, another obscure cannabinoid that’s beginning to attract fans, and even the more familiar Delta 9. 

Delta-8 wasn’t of commercial interest until late 2018 when the federal Farm Bill legalized hemp, which it defines as cannabis containing less than 0.3% THC. Manufacturers discovered that they could use chemicals to convert CBD into a new intoxicant that was legal (in their view), even in states which haven’t legalized cannabis. Delta-8 edibles, vapes, and other products can be found in gas stations, smoke shops, and convenience stores and have become enormously popular.  

Is Delta-8 THC legal?

It’s a complicated question. The Farm Bill doesn’t make exceptions for any hemp derivatives, so supporters say it is (except in the states, such as Colorado, which have passed laws banning it.) However, earlier this year the U.S. Drug Enforcement Administration issued “guidance” that it considers Delta-8 a tetrahydrocannabinol, and therefore a schedule I substance, though it has not formalized that position. Fortis Law partner Henry Baskerville described the DEA’s move as a way for the agency to say, “We don’t like the fact that people are selling an intoxicant that’s not regulated.”

“We have this weird disconnect and ambiguity in law where innovation is overstepping legislation,” Clark Wu, an attorney at Arizona law firm Bianchi & Brandt said. 

Or, as Kim Stuck, a former Denver cannabis regulator who’s now CEO of compliance consultancy Allay, put it, “They didn’t just legalize a plant, they legalized endless possibilities.” Given the many remaining unknowns about the cannabis plant and its chemical properties, there could be many more similar controversies to come. 

Why the controversy?

The licensed cannabis industry and its allies don’t necessarily have a problem with Delta-8 itself and several licensed companies have begun selling products containing the compound. However, the arrival of Delta-8 has infuriated and frustrated some operators for two main reasons. First, Delta-8 is unregulated and so unlicensed operators can sell  these products for far less than regulated companies. 

The second reason is safety. Because Delta-8 isn’t regulated, no one is preventing operators from using harmful chemicals to manufacture Delta-8 products and no one is testing them to see if the products are dangerous. The cannabis industry has everything riding on public perceptions of cannabis as a safe product and if Delta-8 users started getting sick it could tarnish the licensed industry. 

“I don’t think consumers should blindly trust these brands,” said consultant Emma Chasen, a former director of education at Farma, a dispensary in Portland, Oregon. “Manufacturers of Delta-8 can use some really nasty hydrocarbon solvents,” she said. And she believes the products should also be tested for heavy metals.  

Lev Spivak-Birndorf, PhD, CSO and co-founder of PSI Labs in Michigan, said the lab had not done much research into whether toxic compounds are finding their way into Delta-8 products.

Tensions over Delta-8 have recently come to a head in Washington state where it has come out that in addition to selling Delta-8, some licensed manufacturers of THC products were sourcing their THC from CBD. This threatened marijuana farmers since it’s far cheaper to derive Delta-9 THC from CBD than to grow the plants that naturally produce it. In this case, safety seems to be less of a concern since the products made from “synthetic” Delta-9 went through the same testing process as other Delta-8 products. 

“It’s not just in WA. This is a battle that’s happening across the US,”  Attorney Wu said. “All the states with regulated programs are trying to figure out how to define synthetic products.” And thus determine what can be used and under which markets it can be sold.

Cannabinoids derived from CBD through a chemical process, are sometimes called “synthetic.” Tyler Williams, CTO, at Cannabis Safety and Quality, a company which has developed industry standards, said consumers deserved to know whether their Delta-9 came from a plant or through a chemical process, similar to how they deserve to know if their food has been genetically modified. “I don’t think it’s unsafe but it’s unregulated which gives it a chance to be unsafe,” he said.

(Confusingly “synthetic” cannabis or THC can also refer to compounds also known as spice, bath salts, and K2. These drugs, which can be very dangerous, are typically chemicals that aren’t derived from the cannabis plant but get sprayed onto smokable plant matter. They are also sold at head shops, and some customers undoubtedly could get confused between the two types of “synthetic” products. What’s more, since neither Delta-8 nor “spice” is regulated, there’s little to stop manufacturers from labeling one as the other. Bath salts are considered schedule I drugs under the Synthetic Drug Abuse Prevention Act.)

In Michigan, California, and other states, bills are advancing that would allow Delta-8 products as long as they are regulated through the existing cannabis marketplace. This view, which has support from some industry groups, is to maintain product safety while allowing for the kind of innovation that created the Delta-8 marketplace. Meanwhile, other states which are less comfortable with marijuana can follow the DEA’s guidance and make Delta-8 and similarly manufactured chemicals illegal.

“I don’t see anything wrong with it,” Williams of Cannabis Safety and Quality said. “It just needs to be regulated like any other cannabis product.”