Delta-8, Prohibition, and the War on Drugs

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In August 2022, the Indiana Cannabis Awards were held. There were awards for the best vapes, food, and farms. Now, if you’re thinking, wait, does Indiana even have a medical cannabis program? The answer would be no. Also in 2022, Buds and Brews opened in Nashville, TN, boasting cannabis-infused sauces to go with their hot wings, pretzels, and beer. Is cannabis legal in Tennessee? Nope, not there either. Meanwhile, cannabis businesses in legal states like CA are struggling to stay afloat amid high taxes and expensive compliance requirements. And, even in legal states like CA, licensed cannabis companies suddenly have not only the unregulated market to compete with, but another market ready to take advantage of the illogical nature of prohibition: hemp-based cannabinoids.

Cannabis and Hemp: Two Sides of the Same Coin

Let’s get one thing clear from the outset, cannabis and hemp are the same plant. They are different varieties, but both are cannabis. The difference lies in the way the government chooses to define them. “Hemp” is a cannabis plant with less than 0.3% THC. “Cannabis” is a plant that has above 0.3% THC. In states with legal medical or adult-use cannabis, there may be two licensing pathways, one for cannabis and one for hemp. Any product sold through a licensed dispensary must go through the cannabis licensing program, and, as of now, no cannabis product with more than 0.3% THC can be sold outside of a dispensary. Hemp licensing programs are often cheaper to participate in and have lower levels of compliance because they are dealing with a product devoid of THC, and hemp products can be sold outside of dispensaries in places like drug stores and grocery stores.

In 2018, the Farm Bill was passed, which made hemp federally legal. Therefore, any part of the hemp plant, including the parts inside (aka cannabinoids), is also considered to be federally legal. The federal government believed that legalizing hemp was not a concern because it, by definition, cannot have more than 0.3% THC. However, what they were completely naive about is the ingenuity and innovation that would come to serve the thousand-year-old desire of humans to have an intoxicating relationship with the plant.

Why Prohibition Doesn’t Work

Before we get into the science behind hemp-derived cannabinoids, it is important to understand that this is not the first time there has been an attempt to skirt the law in the name of cannabis intoxication. Cannabis is the oldest cultivated plant, and human’s relationship with her spans thousands of years. She has been used across the world, throughout cultures and for a variety of reasons. Cannabis prohibition is a fairly modern phenomenon, spanning from 1937 to 1996, dwarfed by the time in history where cannabis was a trusted medicine. It is only natural that humans would seek out ways to stay connected to her even during prohibition.

As a young adult in the 1990s in Chicago, cannabis was difficult to come by and never reliable. One day during a particularly long dry spell, I noticed an ad in the back of High Times for a “cannabis-like legal smoking blend.” The product promised a look and feel similar to cannabis and a relaxing effect. I decided to order it. What arrived in the mail was aromatic bird seed. I did not feel it was a replacement for cannabis, nor was the “O.P.M.” a substitute for opium. But the fact that these companies existed despite their false promises shows that humans are willing to accept inferiority in the quest for a THC high.

This issue came up again in the early 2000s with the proliferation of Spice and K2 in headshops. Made from synthetic cannabinoids originally created for lab research to overcome the barrier of the Schedule 1 status of cannabis, Spice and K2 were sprayed on herbs and created an intoxication not too dissimilar from cannabis. However, because they were created for research purposes and not for human consumption, they had very serious health risks, including paranoia, anxiety, panic attacks, convulsions, organ damage, and death. And while the media coverage most likely overstated the instances of overdose and death, these occurrences were more frequent than what had occurred during thousands of years of cannabis use. Finally, the VAPI situation several years ago, where lung injury was occurring after use of unregulated vape products, was the just the latest in a line of attempts to circumvent the ill-conceived policy of prohibiting the natural plant. So, is the new wave of hemp-derived cannabinoids the next K2? Or is it giving us a glimpse of the future of cannabis regulation?

What is Delta-8? 10? THC-O?

A quick perusal of websites like show an unending array of cannabis edibles and vapes, all legal to ship throughout the US. Few, if any, are subject to potency and safety testing and all boast the intoxicating effects of chemicals such as Delta-8 and even Delta-9 THC. None are subject to state excise or local cannabis taxes, and although many sites require self-verification of being 18+ to enter, there is no age check required to place an order. So, what exactly is Delta-8 and hemp-derived Delta-9 and are they safe?

As previously discussed, hemp is a cannabis plant with less than 0.3% THC. However, there is no limit on the amount of CBD that can be in a cannabis or hemp plant. Through a chemical process, CBD can be transformed into other cannabinoids, including Delta-8 and Delta-9 THC. Because the source plant is federally legal, it was assumed that any chemicals made from the hemp plant would also be legal, therefore giving rise to Delta-8 THC in markets where cannabis is prohibited (like Indiana and Tennessee). Consumers report that Delta-8 THC has similar effects to the naturally occurring Delta-9 THC in cannabis, but slightly less intense and with less occurrence of side effects like paranoia and anxiety. And of course, scientists being who they are, they didn’t stop at hemp-derived Delta-8 and -9 THC. They have continued to create hemp-derived cannabinoids such as THCH, Delta-10, HHC and Delta-6a10a. However, some states have restrictions on particular hemp-derived products so be sure to check your local laws.

Is it a safe alternative option?

We have just begun to scratch the surface on the potential for hemp-derived cannabinoids, but are they safe? The current answer is: we don’t entirely know. While we have not had an avalanche of reports about poisonings or deaths from these products the way we did with Spice and K2 twenty years ago, we also do not have any long term research on their use. The cannabis plant has been used for thousands of years. Are these new derivatives just as safe as the natural thing? Recently a young child died in Virginia after consuming a large quantity of a Delta-8 product. Furthermore, while a few states have made moves to regulate these products, and the FDA is currently deciding how to regulate CBD, they are largely untested, and just like chemically based methods of cannabinoid extraction with the natural plant, a lack of expertise and oversight can result in contaminated products.

However, for those in prohibition states, especially those who need cannabis for medical use, and for those in legal states who just can’t afford the regulated THC version, Delta-8 and other hemp-based products become very appealing, regardless of risk. All of this points to one main take away: prohibition does not work. And, especially in the case of cannabis, it does not deter use, but rather drives consumers towards whatever is available and accessible, whether that’s O.P.M., K2, or Delta-8.

What this means for the War on Drugs

The arbitrary patchwork of regulations around cannabis becomes murkier everyday. What used to be a simple question of access for medical use has become a chaotic landscape of regulation, rules, and cultures. With the Farm Bill up for review in 2023 and a menu of federal regulation awaiting approval, the hemp and cannabis markets will move quickly in the next five years. Will these two markets continue to run in parallel, occasionally sparking when they come into contact? Or will the government drop the charade of hemp vs. cannabis and acknowledge the plant for what it is, a mix of cannabinoids, terpenes, and flavonoids with different ratios connected to different effects? Will prohibition states with thriving Delta-8 markets still feel the need to legalize? Or will they be satisfied with an intoxicating hemp market? There was a time where the introduction of chemicals like Delta-8 would have set off an immediate attempt to ban them and punish consumers. It seems that those in power have finally learned that drug prohibition is not the same thing as drug control.