More states roll out bans on production, sale of delta-8 products

By Laura Drotleff |May 4, 2021

Delta-8 THC has become a runaway market hit – and more states across the country are responding by cracking down on access to the product commonly derived from hemp extracts.

From Alabama to Oregon, states are reacting to the popular products by:

  • Rolling out total bans to limit market access.
  • Considering measures to ban the products.
  • Setting potency limits on products containing delta-8 THC.

According to Marielle Weintraub, president of the U.S. Hemp Authority, a third-party product certification body, states will continue to ban delta-8 THC and other products like it because the cannabinoid is an intoxicant deemed a controlled substance under federal law.

“Do not produce or sell delta-8 products without a permit to produce or sell THC as a controlled substance,” Weintraub said.

“The correct path for the legal production and sale of delta-8 products is through a state-licensed adult recreational or medical marijuana operator.

“Hemp companies not doing this are risking their brand and business future, sanctions from FDA, FTC, USDA and EPA and possible enforcement actions from DEA and state law enforcement and regulators,” Weintraub added, referencing such governmental agencies as the U.S Food and Drug Administration, Federal Trade Commission, U.S. Department of Agriculture, Environmental Protection Agency and Drug Enforcement Administration.

She added that hemp operators manufacturing delta-8 THC will be barred from certifying products through the U.S. Hemp Authority.

Confusion reigns

The legal status of delta-8 THC – along with delta-10 THC, the newest minor cannabinoid creating excitement in the CBD market – has been confusing because of conflicting regulations.

Proponents of products such as delta-8 and delta-10 THC argue that the 2018 Farm Bill states all hemp-derived cannabinoids fall within the definition of hemp, which is a legal crop and no longer a controlled substance.

However, the DEA issued an interim final rule in late 2020 declaring: “All synthetically derived (THC) remain Schedule I controlled substances.”

Because delta-8 THC is manufactured from hemp-derived CBD, not extracted directly from the hemp plant, it is a controlled substance under law, according to the DEA.

“From a chemist’s perspective, it is clear that the isomerization of CBD to delta-8 THC with a catalyst is a chemical process,” said Erik Paulson, lab manager at Infinite Chemical Analysis Labs, a cannabis testing laboratory with locations in California and Michigan. “Any product of a chemical reaction like this one is, by definition, a synthetic chemical.”

At least five states have considered or are currently updating their laws to specifically govern delta-8 THC, joining at least 11 that already have laws on the books addressing the minor cannabinoid, which can produce psychoactive effects in some people, although they are considered to be less potent than the delta 9-THC common in marijuana.

The states that currently ban delta-8 THC entirely include Alaska, Arkansas, Arizona, Colorado, Delaware, Idaho, Iowa, Mississippi, Montana, Rhode Island and Utah.

However, because delta-8 and delta-10 THC remain listed on the DEA’s Controlled Substances List as Schedule 1 controlled substances, along with delta-9 THC, they remain illegal in all 50 states, Paulson said.

“Some have interpreted the 2018 Farm Bill as the legalization of these other cannabinoids because delta-9 is the only cannabinoid explicitly listed,” Paulson said.

Here is a breakdown of state delta-8 measures:

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