Did the Federal Government Legalize Psychoactive Delta-8 Hemp Products?

The drama around delta-8 THC began to build with a hefty spike in product sales last year. With it came a flurry of questions from regulators, patients, companies, and consumers: What is it? Is it psychoactive and intoxicating as advertised? Why can I buy it everywhere from the coffee shop to the corner store? Most importantly—is it safe?

What Is Delta-8?

Most cannabis products that patients purchase from a dispensary are activated with psychoactive delta-9 THC—the “OG” THC if you will. These products are carefully tracked from “seed-to-sale” in state-licensed cannabis facilities. Dispensary products go through rigorous product safety testing and must abide by regulators’ strict rules (e.g., a prohibition on marketing and selling to minors). If licensees violate such regulations, they risk large fines and even the loss of their multi-million-dollar cannabis business license.

In 2018, the federal government signed the Farm Bill into law. The law defines cannabis material with less than 0.3% delta-9 THC as hemp. This law applies to all U.S. states and territories because it was made at the federal level. You’ve likely seen hemp-derived CBD products online, at the farmers’ market, and even at your local gas station. These products are all required to have less than 0.3% delta-9 THC, meaning the federal government wanted to provide greater leeway to growers producing non-intoxicating hemp products.

However, hemp producers began to develop synthetic delta-8 THC products, which they advertised as having many of the same benefits and psychoactive effects as their more highly regulated, naturally occurring delta-9 THC counterparts. This became the hot new product of 2021, with cities such as Chicago witnessing a boon in coffee shops that suddenly had hour-long lines while charging $40+ per coffee for the addition of “D8.”

These new delta-8 retailers have fewer barriers to entry than dispensaries: they don’t “card hard,” they allow you to add it onto your everyday favorites rather than the limited product selection permitted by dispensary regulators, and they offer it at a price that is still cheaper than dispensary menu items in highly regulated states.

Why Everyone Is Up in Arms Over Delta-8

It is clear that Congress’ Farm Bill of 2018 did not intend to legalize psychoactive hemp derivatives such as delta-8 products. Despite this lack of intent, federal state courts (such as the 9th U.S. Circuit Court of Appeals in San Francisco) must find that state laws do not have the authority to undermine the language of the federal law. (Interesting, as the entire industry is based on state law conflicting with the federal Controlled Substances Act!)

The result is that Congress must amend the Farm Bill to prevent hemp companies from making and distributing delta-8 and similar products to consumers.

There are five key positions in the delta-8 conversation:

1. Hemp companies that consider delta-8 sales a critical portion of their revenue
2. Licensed cannabis companies that feel slighted because they are forced to make massive investments into being permitted to sell psychoactive cannabis products and face a slew of highly regulated requirements for each product they put on the market (e.g., employee training, lab testing, packaging disclosures, marketing restrictions)
3. Legislators and regulators who are focused on public safety and product safety but have limited time to wrap their heads around the scientifically complex delta-8 issue as they have numerous other constituent issues they cannot neglect
4. Social equity advocates who argue that this low-barrier point of entry into the industry should not be revoked from communities that have been disproportionately harmed by cannabis prohibition
5. Delta-8 consumers who currently enjoy the ease of access and reasonable pricing of hemp-derived delta-8 products

What will end up driving decisions made around delta-8 sales are public and consumer safety. It is certain that there will continue to be a market for delta-8 products given its high demand, but lab tests done by independent laboratories repeatedly show inaccurate and often illegal findings that suggest sales should be shifted into a more highly regulated environment.

What Patients Should Know About Delta-8 THC Products

There are risks. If you plan to purchase delta-8 products made by less-regulated hemp producers, it is important to research the company that you purchase from beforehand. You want to know that even though this is an underregulated product, the company has made it a priority to put its products through the same rigorous testing and safety standards as those you find on a dispensary menu. You also want to know if the company is being truthful in these claims.

As delta-8 hemp sales began to rise in popularity, a number of independent laboratory testing facilities took it upon themselves to examine a slew of delta-8 products on the market. The results were alarming: high levels of contaminants, heavy metals, and even delta-9 THC rates over the legal 0.3% maximum.

Forbes recently covered a comprehensive study that matched these findings in Southern California. The 2021 study concluded that most delta-8 THC products sold by hemp manufacturers were mislabeled and that “some companies have entirely faked lab test results.”

This means that although federal law technically permits the sale of psychoactive delta-8 hemp products, it is critical that purchasers—patients in particular—do their due diligence before consumption until federal and state law become aligned.