In his 2021 budget proposal, Gov. Tom Wolf has called for the legalization of recreational marijuana. But some stores are already selling these other products, which give people a high.
| York Daily Record
Watch: 'Close cousin' of active ingredient in marijuana: Delta-8 THC
Jay Whittle, a co-owner of CBD American Shaman of York in Springettsbury Township, talks about Delta-8 THC and why it can be sold — for now.
Paul Kuehnel, York Daily Record
Inside CBD American Shaman of York, on East Market Street near Haines Road in Springettsbury Township, York County, Jay Whittle carries all of those products, which people can buy without a medical marijuana card.
“You will get the euphoria that regular marijuana will give you. So you do get high,” said Whittle, who’s also a defense attorney in York. “And it is completely legal, as of now.”
That’s because, some argue, these products don’t contain Delta-9 THC, the psychoactive ingredient in marijuana. Instead, they feature Delta-8 THC, a compound that’s naturally found in hemp.
In his 2021 budget proposal, Gov. Tom Wolf has called for the legalization of recreational marijuana in Pennsylvania, arguing that profits from the move would help the state economically recover from the COVID-19 pandemic. But even without any action from the Legislature, some stores are already selling these other products that give people a high.
The legality of Delta-8 THC, though, is murky.
Lawyers who are experts in cannabis law have reached varying conclusions about what’s permitted on the federal and state level — though they appear to agree that it’s a complex and evolving issue that has not been tested in courts.
“There is a very strong demand for cannabis and cannabis products,” said Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws, or NORML, an advocacy group. “So there are always going to be entrepreneurs out there that seek to address that demand, whether they’re doing so in a legal marketplace, an illegal marketplace or in a gray marketplace, like this one.”
Delta-8 THC under federal law: Natural or synthetic? Or does it matter?
The 2018 Farm Bill removed hemp and its derivatives from the definition of marijuana under the Controlled Substances Act.
Hemp, the law states, can’t contain more than 0.3% Delta-9 THC.
The legislation also changed the law to exempt THCs in hemp from being classified as Schedule I controlled substances. The federal government views those drugs as having no accepted medical use and a high potential for abuse.
In 2020, the U.S. Drug Enforcement Administration released an interim final rule, which states that the new law doesn’t affect the status of “synthetically derived” THCs. Those are still illegal under federal law.
Though Congress might not have intended to release Delta-8 THC into the market, the compound can be derived from hemp, where it also exists in small quantities, said Andrea Steel, a director at the Houston office of Coats Rose P.C. who co-leads the Cannabis Business Law Group.
Delta-8 THC, she concluded, does not appear to be illegal on the federal level if it comes from legal hemp. That means it has to comply with the limits on Delta-9 THC.
Law enforcement has pursued cases in the past involving synthetic marijuana, such as K2 and spice, which are created entirely in a lab and usually consist of chemicals sprayed onto plant material. That’s different than a naturally derived product that comes from hemp, she said.
At most, Steel said, Delta-8 THC could be considered “semisynthetic.”
„I don’t see this being a high-priority item, unless people are getting sick from it, or it’s causing harm,” said Steel, who noted law enforcement isn’t overly concerned about other products with psychoactive effects such as kratom. „But I don’t think it will be out there forever.”
Meanwhile, Nathalie Bougenies, an attorney at the international law firm of Harris Bricken, who serves as chair of the CBD Practice Group, said it’s plausible that the DEA would take issue with Delta-8 THC.
Her understanding is that manufacturers often take cannabidiol, or CBD, another compound that’s derived from hemp, and convert it into Delta-8 THC through a chemical reaction.
That’s because Delta-8 THC is not found in significant quantities in most hemp on the market, she said.
Given its guidelines and historical treatment of cannabis, Bougenies said, it seems likely that the DEA would consider Delta-8 THC to be „synthetically derived.”
But she said she thinks that there’s validity to the argument that Delta-8 THC is a natural substance.
“My concern, from an enforcement standpoint, is the DEA is not cannabis-friendly,” Bougenies said.
In the end, Bougenies said, Congress or a court needs to clarify the issue because it can be argued both ways.
The DEA declined to comment.
That’s not the end of the legal analysis.
Shawn Hauser, a partner at Vicente Sederberg LLP in Denver and chair of the Hemp and Cannabinoids Department Group, said most of the products on the market right now are “likely illegal” under federal and state food and drug laws.
For instance, she said, the U.S. Food and Drug Administration generally needs to recognize that a food or dietary ingredient that’s intended for human consumption is safe. Hauser said she’s not aware of companies that have followed that clear regulatory process before going to market.
“I can’t say whether all of these products are not compliant,” Hauser said, „but many of them are not.”
Delta-8 THC under Pennsylvania law: ‘This is an evolving area’
In Pennsylvania, the law does not specifically address Delta-8 THC, said Patrick Nightingale, a defense attorney at Cannabis Legal Solutions and executive director of Pittsburgh NORML.
Nightingale said these products are starting to experience a “groundswell of popularity.”
People who are selling them, he said, should stay up to date on any changes in the law.
“This is an evolving area. This is all new,” Nightingale said. “These have not been thoroughly tested in the courts.”
“Various gray areas have not been addressed,” he added. “And savvy entrepreneurs look at this and say, ‘Wait a minute. There’s no prohibition on this, so let’s get in the marketplace.’”
In an email, Scott Bohn, executive director of the Pennsylvania Chiefs of Police Association, said Delta-8 THC is legal under state law.
As of the end of 2020, Delta-8 THC was illegal in 11 states, he said.
But Greg Rowe, executive director of the Pennsylvania District Attorneys Association, said law enforcement professionals that he spoke to believe that Delta-8 THC is prohibited under the Controlled Substance, Drug, Device Cosmetic and Act.
Law enforcement, in other cases, did not decisively weigh in on the legality of Delta-8 THC.
In a statement, Ryan Tarkowski, a spokesperson for the Pennsylvania State Police, said, “This is an area of evolving statute and case law, and questions regarding potential for criminal charges are best directed to the county district attorney.”
The Pennsylvania Attorney General’s Office reported it had “nothing to share” on the topic
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’I think it is a short window'
Whittle, the co-owner of CBD American Shaman of York, said he’s heard nothing but “rave reviews” about Delta-8 THC.
He said he’s cautioning customers to treat it like alcohol. That’s because police can still arrest people on DUI charges if they see signs of impairment.
“My advice is, ‘Don’t even take that chance,’” said Whittle, who owns the store with his law partner, Ron Gross, and York County District Judge Ronald Haskell Jr. “If you want to try it, that’s great, but do it at home.”
Still, Whittle said, he recognizes that he likely won’t be able to sell these products forever. He estimates that he has 8-12 months.
Whittle carries other items at the store that contain CBD, which doesn’t give users a high.
“I think it is a short window,” Whittle said. „But currently, the desire is there.”
Contact Dylan Segelbaum at 717-771-2102.
‘It’s definitely becoming a trendy thing’
Besides CBD American Shaman of York, Deep Six CBD at the Capital City Mall in Lower Allen Township, Cumberland County, is also selling Delta-8 THC products. The store is running a splashy, green ad on the mall’s electronic billboard that declares, „No med card? No problem!”
Andrew Song, general manager of Deep Six CBD, said the chain started carrying these products at about the same time that states ordered businesses to shut down at the beginning of the COVID-19 pandemic.
Song said the stores carry items including gummies, vape cartridges and oils. He said it took a little time for them to catch on with customers.
“However, I do think, at this point, people are starting to enjoy the products,” Song said. “It’s definitely becoming a trendy thing.”
How are Delta-8 THC products typically made?
Dr. Matthew Curran, director of food safety at the Florida Department of Agriculture and Consumer Services, said Delta-8 THC and Delta-9 THC are considered isomers.
That means they have the same molecular formula and weight. The arrangement of the atoms, though, is different.
Delta-8 THC, he said, can be detected in trace amounts in some hemp variations — but it’s hard to harvest.
So Curran said a common approach is to use to convert cannabidiol, or CBD, another compound found in hemp, into Delta-8 THC. That’s done through using a catalyst, subjecting the material to heat and putting it in acid.
If the chemical reaction is not driven to completion, he said, the final product could end up with an appreciable amount of Delta-9 THC.
Said Curran: “We have found Delta-9 to be in some of these Delta-8 samples.”