Weed Week

How Regulatory Uncertainty Helped Give Rise to a New Street Drug

Untested delta-8-THC products are gaining in popularity

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A novel cannabis drug is popping up in cities across the U.S., eliciting concern from members of the cannabis and hemp industries, state legislators, and a chemist who reviews cannabis drugs for safety. While the newly popular compound of delta-8-THC is not expressly prohibited by the Controlled Substances Act, people I spoke to are concerned that it is being produced unsafely and not receiving the same scrutiny that regulators apply to legal marijuana. 

The arrival of delta-8-THC—which is being sold in various places as a tincture, in vape pens, added to food, and sprayed on hemp flower so that it can be smoked—coincided with the passage of the 2018 Farm Bill, in which Congress repealed the federal prohibition on hemp and its byproducts. While delta-8-THC occurs in only trace amounts in hemp and cannabis, it can be synthesized from CBD isolate, the main commercial compound derived from hemp plants. 

After the farm bill passed, investment flooded into the hemp industry based on the expectation that it would be only a matter of time until farmers could sell hemp products as nutritional supplements. 

"Everyone anticipated that big grocery and pharmacy retailers would line their shelves once hemp and CBD were legal," Jim Higdon, co-owner and co-founder of Cornbread Hemp in Kentucky, tells Reason. But selling to national grocery and pharmacy retailers hinged on the Food and Drug Administration (FDA) classifying hemp-derived CBD, short for cannabidiol, as a nutritional supplement. Instead, the FDA explicitly declared that CBD could not be sold as a nutritional supplement. 

"The CBD industry in 2017 and 2018 had this rush with people wanting to get in," says Eric Steenstra, president of Vote Hemp. "In 2018, we had about 3,500 licenses for growers in the U.S. In 2019, we had over 19,000 licenses for growers." Then, when the FDA made it clear that hemp-derived CBD could not be marketed as a nutritional supplement, "you had all these people producing all this CBD, and there were suddenly way more producers than purchasers," Steenstra says. The prices of hemp and hemp-derived CBD isolate plummeted and remain low. "Lots of people couldn't sell their hemp flower and a lot of producers were sitting on CBD isolate trying to figure out what to do with it."

That's when some enterprising chemist found that CBD isolate could be synthesized into delta-8-THC, a cousin of delta-9-THC. While delta-9, the main psychoactive ingredient in cannabis, is prohibited by the Farm Bill and the Controlled Substances Act, neither piece of legislation mentions delta-8. Though it's not inherently dangerous, says Christopher Hudalla, the founder and chief science officer of ProVerde Laboratories, which provides testing services to state-legal cannabis businesses in Massachusetts and Maine, Hudalla has yet to test a delta-8-THC product that contains only delta-8. 

When he first saw products containing delta-8-THC in 2018, Hudalla says, "I thought, 'This is cool, this is novel.' But then I was like, 'What do we know about this?'"

The products Hudalla tested contained delta-8-THC, but also other THC isomers as well as chemical byproducts. "These byproducts are not found in nature. Chemists are using very, very strong reagents—strong acids, strong bases. If you don't know what you're doing, it's very possible to pass along some of those reagents to your customer."

Hudalla looked at numerous samples, finding not only chemical byproducts unfit for consumption but also chemical isolates he couldn't identify. He says that when pharmaceutical companies produce a drug and can't get rid of all the chemical byproducts, they are required to prove that the byproducts are safe. The delta-8 producers he's spoken with, many of whom are using unsophisticated labs, do not have the resources or the know-how to conduct those studies.  

Hudalla couldn't tell his clients that their delta-8-THC products were pure, so he wrote lab reports for them declaring that the products were not fit for human consumption. The decision has cost him business, and many producers have simply shopped for a lab that will write them a purity report they like. But he stands by the decision, citing lessons learned from the wave of lung injuries caused in recent years by THC vape pens sold on the black market. "I don't want to be responsible for someone hurting someone else, and I don't want a certificate of safety with my name on it found in a DEA bust," Hudalla says. 

Steenstra is equally concerned that some members of the hemp industry have turned to producing delta-8-THC. "These products are being produced who knows where, under who knows what conditions," Steenstra says. "There's been no research into whether delta-8-THC products are safe." 

Like Higdon, Steenstra is frustrated that the FDA refuses to roll up its sleeves and do the work of regulating hemp and CBD products as nutritional supplements. "These products are not being regulated by the FDA, but they should be," Steenstra says. "There are lots of good companies making good products, but they're doing it voluntarily. Which means there's a lot of poor-quality stuff out there as well." The thinking among hemp advocates is that smart regulations would give the hemp industry a path toward commercial viability, stabilize prices, and discourage the diversion of CBD isolate toward grey and black market delta-8-THC products.  

The adult-use cannabis industry is also concerned about the rise of delta-8-THC. "Very little is known about the health effects of delta-8 and almost all current production is entirely unregulated," says Morgan Fox, media relations director for the National Cannabis Industry Association. "Until we know more about delta-8, its production and sale should be regulated just like delta-9 under existing state cannabis licensing and oversight systems."

Fox also says that prohibition in general, not just the FDA's refusal to regulate hemp, is driving the delta-8-THC trend. "Keeping delta-9-THC—which is naturally present in cannabis at usable levels and has a long history of research and longitudinal data showing its relative safety—either illegal or so heavily regulated that it becomes prohibitively expensive for consumers creates an unnecessary demand for alternative inebriating cannabinoids. We are seeing that even though there is some limited demand for delta-8 in states with regulated cannabis markets, the vast majority of interest is in prohibition states."

While many defenders of delta-8 insist that it's perfectly legal under federal law, no one I spoke with thinks the legality is the most pressing issue. "It scares me that hemp is being marketed this way. It's a black eye for the hemp industry," Steenstra says. "If you go to a dispensary in a state where medical or recreational cannabis is legal, it's tested for everything and comes with a data sheet. In places where it's not legal, you're buying delta-8 at a gas station and have no idea."

No one I spoke to objected to the creation of a novel cannabis compound, they just don't want to harm consumers or erase the goodwill they've accumulated by submitting to regulation and oversight. "If someone can produce a delta-8 product that is actually delta-8 and not a garbage product, I don't have a problem with that," Hudalla adds. "That's a regulatory issue. As of right now, we're using consumers as guinea pigs."

NEXT: Brickbat: Easiest Arrest Ever

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  1. more products for the weak minded, addicted peasantry

  2. So is Reason promoting the FDA here? Seems Reason is as much of a Libertarian as Bruce Jenner is a woman.

    1. The people interviewed talked about the FDA. Seems like the point of the article is that the FDA should allow CBD to be sold as a supplement.

    2. “Reason is as much of a Libertarian as Bruce Jenner is a woman”

      Well, you got that right… sure got that right.

    3. Nope. They’re saying the FDA is failing miserably at the job they’re “supposed” to do. In trying to “protect” people they’re making things WORSE. They can’t even get their own shit straight, and, as a result, it’s backfired.

      Saying the FDA’s own policies did the exact opposite of what they’re trying to achieve, and they should just fuck off and get outta the way, is about as anti-FDA as it gets.

  3. Libertarians for Americans being drunk and high all the time.

    1. What happened to Mexicans and ass sex?

  4. While many defenders of delta-8 insist that it’s perfectly legal under federal law, no one I spoke with thinks the legality is the most pressing issue. “It scares me that hemp is being marketed this way. It’s a black eye for the hemp industry,” Steenstra says. “If you go to a dispensary in a state where medical or recreational cannabis is legal, it’s tested for everything and comes with a data sheet. In places where it’s not legal, you’re buying delta-8 at a gas station and have no idea.”

    The concern seems to be that there’s not ENOUGH regulation around this product. Because currently, it’s 100% legal. This article kind of forces us to swim against the traditional current that says “nothing dangerous would ever be synthesized if it were all 100,000% legal!”

    1. Yes, until you consider certain facts. First, it’s not legal to sell it as a dietary supplement, just as an otherwise undescribed chemical that’s technically not intended for ingestion, so no guarantees. Second, it’s competing against similar products that are not 100,000% legal.

    2. I doubt there would be much market for the delta-8 if regular cannabis extracts were legal everywhere.

      1. If they were simply legal I think you would be hearing a lot of similar ‘concern’ over the absence of labelling/testing/regulation.

  5. My Dad used to say, ” Folks get ‘over-smart’ about things.”

  6. Learn something new every day. Seeing as how this is a libertarian site, I have to chuckle a bit at the absence of any mention of the elephant in the room as it concerns “legal” cannabis.

    Kids, go back and have a look at the monopoly pricing discussions in those Econ 101 classes that you hated so much. A monopoly or oligopoly restricts quantity to support prices. This is what the various state “legalization” schemes do, by erecting barriers in the form of licensing requirements that make no sense.

    The result is that cannabis and its derivatives are laughably overpriced. A couple weeks ago, I saw ounces of indica offered for $250 at a “dispensary” in Oregon. It so happens that I grow a couple plants myself, at a cost of $1.75 per. And that much only because I grow from clones and not seed; if I grew from seed, the cost would be less than a buck.

    Now, there are costs I don’t have: labor, distribution. Throw those in, and the growing cost (per a Rand Corp. study) should be $2.80 an ounce, and trending downward as farmers adapt their machinery to reduce harvest labor costs. This would be in an authentically legal market, i.e., marijuana as tomatoes.

    As cannabis loses its stigma, the feature of most state laws that allows home cultivation at a small scale will fatally undermine state-level efforts to support prices and tax revenues. The 100-million strong invisible army of American gardeners will increasingly swing into action, as it dawns on more and more of them that a plant grown outdoors in the backyard, right next to the zucchini, will yield a couple of pounds at a cost that will round down to zero.

    Reason, you are libertarians, or so you proclaim. If that’s the case, then it’s time to go after those state regulatory systems that aim to replace the Mexican cartels with their own cartels. If MJ is to be legal, than legalize it! The commodity should be treated no differently than tomatoes; if that were to happen, prices would fall through the floorboards right away rather than in slow motion as individuals look at the numbers, laugh, and plant their own.

    1. A half-correction. My growing cost is $1.75 per ounce, not per plant.

    2. As they proclaim? Dude, who the fuck else is talking about, and ADVOCATING, the legality of ghost guns? GHOST GUNS, for fuck’s sake. Which I also support, being an avid ‘gun nut’, myself. 😉

      Just because some libertarians embrace some versions of incrementalism does NOT mean they’re not libertarians. It just means not letting the perfect be the enemy of the good. Tactics are totally, legitimately debatable, but let’s not lose our shit, here.

      Right, because if it’s not perfect, it shoudn’t be done. All those kids getting shot in drive-by shootings. Meh, fuck ’em!

      He also forgot to bring up Somalia. Haven’t heard that one in awhile.

      1. You know, you used to be able to edit these, but nooooo, they had to take it away…

      2. What does your comment have to do with the subject of the thread, or do you have a problem with explosive incontinence?

    3. “A monopoly or oligopoly restricts quantity to support prices”

      Government ones often exist primarily to expand and support more government.

      And that’s the most serious problem with the vast majority of MJ legalization, we are simply exchanging one set of government rules and enforcement regime for another.

      It’s kinder gentler statism, not liberty.

  7. I just made a batch of spiked cookies, and this time I took careful note of the ingredients and used a measuring tablespoon to produce cookies of fairly uniform size.

    My total cost was 30-35 cents per cookie, each of which contains 75 mg of THC. At the local pot store, a “Happy Apple” drink with 100 mg of THC goes for $35. Equalizing the THC levels, that’s an 80-fold markup.

    It’s so amazing that I will do a direct comparison. By the numbers, which I have carefully researched, there’s a gigantic markup. Even if my numbers are too optimistic for the cookies, there’s a whole lot of daylight between what I make at home and what they are getting in the store.

    Of course, I’ll also see if they sell cookies, which would be a better comparison. I cited the drink because my other half buys them on occasion, which has inspired me to duplicate. The research will continue, but one thing’s crystal clear: The “legal” MJ business is generating profits far, far, far in excess of business risk, and that’s entirely because of regulatory hijinks.

  8. Just would like to say that this article definitely needs some editing delta 8 isn’t a street drug first off that’s why it’s federally LEGAL… Second this article claims they don’t know the long term effect of delta 8 which is false it’s been around for decades and has been given to cancer patients. Also Delta 8 thc in gas stations should for sure be banned but I have heard of many vendors with fully panel lab test assuring delta 8 is the only Cannabinoid present and Heavy metal testing passed etc….I feel like this article shouldn’t have tried to make delta 8 look like a drug when it’s not nearly as psychoactive as delta 9 thc which is becoming legal everywhere overtime weather the person who wrote this likes it or not Welcome to the Cannabinoid Wave ppl finally discovered other Cannabinoids and ppl like Mike Riggs don’t know how to react so they make some article of misinformation like this it’s ok mike you’ll do better next time I hope 🙂

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