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By Geoffrey Taylor, MA, Hemp Contributor, Valley Ag Voice

Geoffrey Taylor
Geoffrey Taylor, MA, Valley Ag Voice hemp contributor.

For many in the cannabis and hemp industry, Delta-9 THC, or tetrahydrocannabinol delta-9, holds great significance to the status of their operations. From the cannabis standpoint, this psychoactive component of cannabis plants is heavily regulated under state law and still considered a controlled substance under federal law. From the standpoint of hemp producers, it is critical to produce low-to-no Delta-9 THC plants to remain compliant with both state and federal regulations. 

However, with the rise of the hemp-derived CBD, or cannabidiol, marketplace, and a glut of CBD available nationwide, an emerging trend of synthesizing Delta-8 Tetrahydrocannabinol has presented new opportunities to use scientific processing methods to transform CBD into this mildly psychoactive cousin of the more common Delta-9 THC. Utilizing a process called isomerization, CBD producers are able to convert this benign and non-psychoactive cannabinoid into large amounts of the mildly psychoactive Delta-8 THC, challenging the speed of regulatory bodies to adjust to the trend while opening the product up to a nationwide marketplace, utilizing the grey areas in local, state and federal laws to create a new product from a surplus of CBD.

“This is a unique scenario in the hemp marketplace that producers have been able to utilize emerging technologies to convert CBD to Delta-8 THC and basically skirt around many of the regulations in place intended to control and regulate other psychoactive substances like Delta-9 THC,” said Travis Copeland, owner of Unico Ag LLC. “For producers and extractors who were producing hemp solely for the cannabinoid content in CBD, this allowed many of those producers to recoup losses associated with the fallout of the CBD market and eliminate a great deal of inventory into something that is still viable for public-facing sales.“

Delta-8 THC is a compound that is molecularly similar to Delta-9 THC which is explicitly regulated in 36 states with medical cannabis laws and another 16 with recreational cannabis laws on the books and is currently federally illegal in accordance with the Controlled Substances Act. While Delta-8 THC is currently illegal in only 11 states, many other states are currently considering how to regulate the compound in such a way that suits their existing cannabis hemp laws. For example, California is considering a bill that applies new taxes and labeling requirements to Delta-8 THC products and increases regulatory oversight on this popular emerging cannabinoid.

“Seeing how other states have responded to Delta-8 THC and how federal agencies like the DEA (Drug Enforcement Agency) and FDA (Food and Drug Administration) are responding to this trend in the hemp industry is important for producers to avoid any unnecessary legal action being taken against their businesses,” said Copeland. “It might be a lucrative way to process an abundance of CBD inventory, but it’s also a massive risk to many businesses as it blurs the lines between non-psychoactive CBD and the psychoactive Delta-9 THC that is so heavily regulated state-by-state, especially here in California.”

As new cannabinoids such as CBN, or cannabinol, CBG, or cannibigerolic acid, and Delta-8 start to take hold as uniquely isolated cannabinoid compounds, the complexity needed to form the regulations surrounding hemp-derived cannabinoids is simply too unrefined to meet the rapid speed at which the hemp industry pivots to new trends, new processes and procedures in cannabinoid extraction practices and consumer demand for unique products. Many hemp industry operators are simply operating within the hodge podge of local and state regulations along with the new interim rulings issues by the DEA. In opting to participate in these lucrative grey areas within the law, many industry operators are opening themselves to unique legal risks that can be difficult to navigate without the assistance of experienced legal counsel.

“To anyone venturing into these emerging areas within the hemp industry, I’d highly recommend having knowledgeable legal counsel on both hemp and cannabis law because many of these trends are straddling the line in the sand between the two industries,” said Copeland, “You’re going to have a lot of questions and need a lot of guidance to avoid the pitfalls that come with these grey areas in the laws at every level.”

Only time will tell how the hammer falls on products like Delta-8 THC, but many in the cannabis industry worry about the lack of regulation and testing on psychoactive products that compete with their heavily regulated and heavily taxed cannabis products. While Kern County, the City of Bakersfield and many other local jurisdictions have banned both medical and recreational cannabis business operations in their boundaries, the availability of Delta-8 products at local smoke shops and other locations is entirely unregulated and widely available for consumers.

As the hemp industry expands and finds new avenues to profitability, industry operators will need to pay close attention to new regulatory oversight from the local, state and federal levels to remain compliant and grow in this exciting industry. While regulators have been overwhelmingly slow to respond and react to trends like Delta-8, history shows that as they catch up to these types of emerging trends, new laws and regulations will play a major role in consumer availability of these types of cannabinoid products.