How Some THC Is Legal — For Now

According to the National Institute of Health (NIH), there are currently at least 144 known cannabinoids that have been isolated from the cannabis plant. The most popular among them is Delta-9-tetrahydrocannabinol (THC), the primary psychoactive compound known to provide all the stereotypical effects of getting high. Yet a lesser-known cannabinoid, with more than half of the psychoactive potency of Delta-9-THC, seems poised to challenge its dominance.

No, it’s not CBD, CBN, CBG, or CBC — it’s Delta-8-THC, an analog of Delta-9-THC.

The cannabinoid was arguably legalized in December 2018 when the Farm Bill was passed; yet it wasn’t until September 2019 that 3Chi, an online cannabis retailer, became the first company to sell Delta-8-THC cartridges, gummies, tinctures, and concentrates in all of the 38 states where it’s legal — both online and in retail stores. According to 3Chi, the company Delta 8  is “the biggest Delta-8-THC company in the country with products in every state in which Delta-8 is legal.” Their 1,000ml cartridges retail at around $25 with shipping, making it far cheaper than most Delta-9-THC cartridges sold in recreational states.

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From a molecular perspective, Delta-9-THC and Delta-8 aren’t that different. Except for that a particular chemical bond appears on the eighth carbon — instead of the ninth. Dr. Peter Grinspoon, an instructor in medicine at Harvard Medical School, estimates Delta-8 “has a portion but not all of the psychoactivity as Delta-9,” which is the majority opinion in the cannabis industry. People often report that due to its reduced potency, Delta-8 provides them with a smoother, milder high that is less sedative and more functional than Delta-9. Another researcher, Dr. Max Mikheev, chief executive and science officer for biotech firm BIOMEDICAN, notes people anecdotally report that it provides all the perks of Delta-9 — without the anxiety or paranoia.

The legality surrounding Delta-8, however, remains complicated. “While Delta-8-THC is legal if derived from hemp, the process most commonly used to produce Delta-8 — synthetically altering CBD into Delta-8-THC — probably isn’t legal,” says Joseph Hoelscher, founding member of the Texas Association of Cannabis Lawyers and longstanding member of the NORML Legal Committee. According to Hoelscher, who represents cannabusinesses in Texas, synthetically altering the CBD is considered the cost-effective method for manufacturers to produce wholesale Delta-8-THC, which otherwise only exists in fractions of a percent in hemp plants. This process, though, is federally banned.

“Just as many jurisdictions struggled to build the infrastructure to correctly identify legal hemp, few have the ability to correctly establish, scientifically, how a sample of Delta-8-THC was sourced,” Hoelsccher says. “The DOJ is aware, and we can expect that they will figure out how to prosecute these cases.”

When asked about the future of Delta-8’s legality, a DEA spokesperson told Rolling Stone that the agency is currently undergoing the rulemaking process regarding the implementation of the Agriculture Improvement Act of 2018 — which includes the scope of regulatory controls over marijuana, tetrahydrocannabinols, and other marijuana-related constituents — and would therefore not be able to comment on Delta-8 until the process is complete.

The spokesperson added that “the emergence of different marijuana constituents underscores the importance of research. There is a lot to learn about the impacts of marijuana and its chemical constituents, and the DEA and the DOJ fully support these research efforts which is why a few weeks ago with the support of our interagency partners, we announced unprecedented action to expand opportunities for scientific and medical research on marihuana in the United States.”

To ease customers’ concerns, LiftedMade has an entire section on its site outlining which states they will ship to and which states they will not. Due to the haziness of the law, LiftedMade may label Delta-8 as “legal” in one state, such as Connecticut, yet only as “likely legal” in another state like California. “I think the Delta-8 will dwarf the CBD market, and can be bigger than any other cannabinoid in any other space,” says Nicholas Warrander, CEO of LiftedMade, which sells hemp and hemp-derived products throughout the U.S., and will soon be sold in 2,500 independent pharmacies around the country. “A huge expectation of people with CBD was feeling something, and Delta-8 provides that. In many ways, Delta-8 is the bridge between the hemp industry and the cannabis industry as it can be used recreationally, not just medicinally.”

Once Craig Henderson from Extract Labs, a veteran-owned, Colorado CBD company known for producing high-quality minor cannabinoids, saw other companies like LiftedMade and 3Chi taking the plunge into the market — and weren’t getting harassed by regulators — he decided it was time to embrace Delta-8. “I was nervous to be the first guy out with it,” says Henderson. “It was only when we saw people advertising and marketing it that we thought, ‘Lets try to make it better than everyone else.’” However, despite his strong sales of Delta-8, Henderson says he remains concerned that the cannabinoid could face increased regulatory scrutiny.

Brett Sandman of JustCBD, a top online market for CBD products, does not carry Delta-8 products. From his perspective, the retail demand for Delta-8 is fueled by vape shops and e-cig stores pivoting to save their businesses that have been crippled by a combination of the pandemic and recent regulation. “Due to the e-cig and vape-oil-flavor ban, most of these stores were just holding on,” Sandman told Rolling Stone via email. “Now, the surge in Delta 8 is helping these small business owners keep their lights on.”

Instead of going through the trouble of producing their own Delta-8-THC, some pharmacies and smoke shops are purchasing it in bulk from reputable producers like Elevated Wellness, a CBD company founded by a team of pharmacists, then rebranding it as their own. However, Ross Anderson, lead manager for Elevated Wellness, says the reception to Delta-8 from potential clients has been mixed. “Depending on the organization, they can either be Vape Australia super receptive or slightly hesitant,” he tells Rolling Stone. “Usually, the people or companies who are hesitant don’t fully understand it. But some companies won’t get into D8, simply because of the fear that they could make a large investment and not be able to sell it in the near future if any laws were to be made against Delta-8 (which is ultimately a possible outcome), effectively creating a hefty loss.”

In some ways, Delta-8 sounds too good to be true. But it isn’t. For people who want to feel the psychoactive effects of Delta-9, yet find it gives them paranoia or anxiety, Delta-8 is a quasi-legal option available online. And unlike Delta-9, Delta-8 is significantly cheaper, making it a viable option for some people looking for a short uplifting feeling without being intoxicated. But judging by how much attention Delta-8 has been getting by law enforcement, the trend might be short-lived. Despite the burgeoning success of Delta-8 over the past year, any day can be the cannabinoid’s last.

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