Delta-8: Hemp intoxicants and their future regulation

The industrial hemp industry is still in its infancy after the 2018 USDA farm bill opened the country to farming, extraction and production of cannabinoid infused products. The overarching federal law stipulates that hemp and hemp infused products must contain less than 0.3% THC by dry weight or volume without providing much further guidance on anything. As abrupt legalization and lure of overnight riches set off the new green rush – brands and companies scaled quickly to capitalize on the latest “newly” legal fad. The industry grew faster than consumer demand could support – resulting in huge over-supply of industrial hemp biomass/flower extraction companies, and brands trying to all capitalize on the nation-wide legalization of Cannabis Sativa (in its newly defined industrial hemp definition).

As the CBD extraction and isolation businesses struggled with rapidly declining wholesale prices accompanied by lawsuits and bankruptcies, another sub sector percolated. Chemists and synthesizers – suddenly with a glut of input material (cbd isolate) – worked on new techniques to create synthetic cannabinoid derivatives. These manipulative approaches often included using heavy hydrocarbon solvents such as hexane and pentane in pressurized reaction vessels. The result was the creation of concentrated Delta 8 THC – an intoxicating cannabinoid that does naturally exist in both cannabis and hemp in very small concentrations – it quickly became popular in fridge consumer products sold in head shops and gas stations as “THC” light or “a legal way to get high.”

What is Delta-8 THC?

Delta-8 THC (tetrahydrocannabinol) is a psychoactive substance that can be found, sometimes, in trace amounts of Cannabis Sativa. It has a slightly different molecular make up as compared to Delta-9 THC, which is the main active and naturally occurring molecule found in marijuana. The hemp derived delta-8 market is a grey area that producers are operating in, as it’s not technically Delta-9 THC which the farm bill explicitly limits – the only limited cannabinoid. Where Delta-8 THC becomes more concerning, is the fact that it’s converted through “washing” CBD isolate with a heavy chemical catalyst to convert to delta-8 and is also psychoactive. To put it simply, it’s a cannabinoid isomer derived from cbd isolate. Delta-8 products can now be found in vape carts, edibles, “flower”, and other delivery methods on websites and store shelves practically nationwide but heavily concentrated in states where marijuana is not yet decriminalized or legalized for adult use.

What’s the Issue?

It started with delta-8 and now has exploded even further to dozens of converted psychoactive cannabinoids all done through a similar process that takes advantage of the same legal loophole. The safety of these derivatives is highly in question due to the process to make them: synthetic in nature, intoxicating, with unknown long and short term effects from consumption. Unlike naturally occurring and unadulterated cannabinoids such as CBD, CBDa, THC, THCa, CBG and CBN, these synthetic cannabinoids have been created in a laboratory environment in concentrations that are not natural. Oftentimes the production facilities are not following basic food safety regulations and guidelines furthering risk to consumer and employees.

Legislation has not been able to keep up with this quickly growing sub-market. Forbes recently estimated that Delta-8 sales and similar derivatives topped $ 2 billion over its 2-year history. Some states even, like Minnesota, passed state legislation allowing the retail sales of delta-8 to continue while taking a stern stance against any adult recreational use of marijuana. Why? Minnesota clearly didn’t fully understand what exactly they were doing but did want to support the cultivation of Industrial Hemp due to its large number of farmers.

The highly regulated adult use recreational and medical marijuana stakeholders have also surfaced to become strong opponents of hemp-derived psychoactive compounds. The more established legalized states have seen their sales drop consistently starting around the same time that Delta-8 products started flooding shelves and websites.

Colorado Regulation

The 2022 Colorado legislative session passed Senate Bill 22-205, directing the Colorado Department of Revenue’s State Licensing Authority (DOR SLA), Colorado department of Agriculture(CDA), and the Colorado Department of Public Health and Environment (CDPHE) to establish a task force to study intoxicating and synthetic hemp products. At this start of this year the task force published its Final Report which makes recommendations concerning the regulation of intoxicating and synthetic hemp products.

10 summarized points from the Intoxicating Hemp Task Force Report

1. Classifications. Recommended classifications are 1. Non-intoxicating cannabinoids; 2. Potentially intoxicating compounds; and 3. Potentially intoxicating cannabinoids
2. Non-intoxicating cannabinoids. Include full spectrum hemp extract, broad spectrum hemp extract CBD, THCV, CBC, CBT, CBL, CBE, CBG, CBDV, and CBN.
3. Potentially intoxicating compounds. Potentially intoxicating are prohibited from being included in hemp products sold in Colorado and from being manufactured in Colorado, except recommended safe harbor (#10 below)
4. Intoxicating Cannabinoids. The laundry list of listed cannabinoids classified as intoxicating(delta 8, HHC, etc.) be prohibited in hemp products and from Colorado manufacturing except as permitted under the safe harbor.
5. THC Limitations. The initial limits recommended are no more than 2.5 mg THC per serving and a ratio of CBD to THC greater than or equal to 15 to1. No container limit. CBN shall be restricted to no more than 25 milligrams per serving.
6. Labeling and Marketing. Hemp products be labeled to distinguish those that contain synthetic cannabinoids and should not be marketing THC or any other intoxicating cannabinoids.
7. Approval of certain Hemp Products. Manufacturers of hemp products that are prohibited under the above classifications can obtain approval or sale of such products in Colorado based on a determination that the product is safe.
8. Standing Scientific Committee. A standing scientific committee to be established to evaluate the science an data related to these novel cannabinoids.
9. Synthetics. Establish an approval process for producing and selling synthetic cannabinoids in Colorado.
10. Manufacturing Safe Harbor. Recommendation that a safe harbor be established for manufacturing hemp products that are prohibited in Colorado but may legally be sold in another state. Under this, certain cannabinoids classified as potentially intoxicating may be manufactured in Colorado and sold in other state where permitted.

Time will tell which recommendations from the report will be included in the bill during this year legislation session. These rules would start to phase in next year.

Materia POV and Conclusion

Materia has never produced or sold intoxicating cannabinoids defined by the task force as it does not align with one of our main missions of producing the highest quality products that are both healthy for the consumer and our planet. We do believe that the list of non-intoxicating cannabinoids is appropriately defined and will continue R&D to be able to produce them for our client base and organically whenever possible. The THC limitations are reasonable as well, as we are firm believers of Full Spectrum products and the presence of low doses of THC to encourage the “entourage effect”. The proposed legislation is just a steppingstone in the legalization of cannabis, and it will be interesting to see how other states follow. However, at this point, it might take full federal legalization to stop the production of psychoactive hemp derivatives.