A decision by Texan authorities to make theirs the latest state to ban Delta-8 THC has highlighted the growing tension surrounding this federally legal, but increasingly scrutinized marijuana-derived compound.
Once a little-known hemp byproduct, Delta-8 has proliferated in recent years, riding the coattails of the surging popularity of CBD oil. Proponents of the substance claim that it gives users a (federally) legal high while imbuing users with bountiful health benefits. Many articles and blog entries by Delta-8 users and advocates go so far as to claim that all these benefits come with zero health risks.
As Delta-8’s popularity rises, so too do the number of reports of emergency room visits and hospitalizations, prompting soul searching and action by US officials who believe improved regulation is imperative.
In this explainer, we explore Delta-8 and its precarious legal status in the United States.
What is Delta-8 THC?
The term tetrahydrocannabinol (THC) traditionally refers to delta-9 THC, which is the main psychoactive compound in marijuana. In recent years, a new variant known as Delta-8 THC has amassed a dedicated user base across the United States.
Practically, users say Delta-8 THC provides a high similar to that obtained from marijuana, but with reduced drawbacks ranging from decreased paranoia to a lower likelihood of running afoul of the law.
Chemically, Delta-8 THC is very similar to Delta-9.
Legally, the distinction lies in the fact that the Delta-8 currently saturating the market is synthetically derived from federally legal CBD, not from marijuana plants. (See more on this topic below).
What is the legal status of Delta-8 in the United States?
The 2018 Farm Bill created a loophole that made it possible for manufacturers to synthetically derive Delta-8 from hemp plants. In particular, the law authorized the sale of hemp-derived products, defining hemp in the process as a cannabis plant with up to 0.3 percent Delta-9 THC. Despite the Farm Bill, the U.S. Drug Enforcement Agency (DEA) included Delta-8 as an alternate name of THC in its latest orange list of controlled substances, sowing confusion among legal watchers, but doing little to ebb the flow of Delta-8 on the market.
Since the Farm Bill passed, inadequate regulatory oversight has created a Wild West of Delta-8 production, where sellers are able to peddle various forms with varying byproducts to buyers wooed by promises of a healthy high.
Recent warnings by both the Centers for Disease Control and Prevention (CDC) and the U.S. Food and Drug Administration (FDA) signal an uptick in federal scrutiny. In its warning, the CDC cites soaring numbers of “adverse events” related to Delta-8 consumption in urging consumers to think carefully before taking it. The FDA likewise sounded the alarm over increased adverse health effects, as well as child-friendly advertising and contamination concerns in warning users to do their research before ingesting Delta-8.
But in the absence of immediate federal legislative action, many states are now making moves to regulate the substance within their own territories. As mentioned above, Texas is the latest state to do so. In fact, a recent statement by the state’s Health and Human Services Department made clear that state authorities have adopted a firmer stance on Delta-8 than they have on its more heavy-duty counterpart Delta-9. According to the statement: “Texas Health and Safety Code Chapter 443 (HSC 443), established by House Bill 1325 (86th Legislature), allows Consumable Hemp Products in Texas that do not exceed 0.3% Delta-9 tetrahydrocannabinol (THC). All other forms of THC, including Delta-8 in any concentration and Delta-9 exceeding 0.3%, are considered Schedule I controlled substances.”
But at the time of writing, some 21 other states – including some with famously liberal recreational drug policies, like Oregon and Colorado – have taken or are in the process of taking action to regulate or ban Delta-8. To see a map of states with pending or passed anti-Delta-8 legislation, click here.
What’s behind Delta-8’s rise in popularity?
With a glance at the language used to market Delta-8, it’s easy to see why it’s become America’s cannabinoid sweetheart: Proponents of Delta-8 boast of the substance’s myriad ostensible health benefits, including its purported abilities to increase focus and sustained concentration, reduce anxiety and pain, provide a sense of clearheaded euphoria, and perhaps most confoundingly, its capacity to increase appetite while spurring on weight loss. In short, the substance is lauded by sellers and enthusiasts as a miracle drug.
Those familiar with wellness fads will recognize these claims as typical of industry trends. From the alleged capacity of acai berries to promote anti-aging and weight loss to the ability of adaptogens to simultaneously decrease stress and increase endurance, hyperbolic claims run rampant in the wellness sphere.
Though often these false promises only carry the risk of money lost on exorbitantly priced health foods, when it comes to largely unregulated, synthetically produced psychoactive compounds, much more can be at stake.
What inspired the recent push to regulate Delta-8?
All assurances of Delta-8’s safety aside, in recent months, tales of emergency room visits and hospitalizations have emerged from across the United States.
According to the CDC, since the American Association of Poison Control Centers introduced a Delta-8 product code in 2021, some 661 cases of adverse Delta-8 exposure had been recorded, 18% of which had led to hospitalizations, and 39% of which involved patients under the age of 18.
These risks are all the more worrying given the fact that Delta-8 is often found in edible form, which can in turn attract unwitting children. A two-year-old Virginia girl was unconscious for 30 hours, only to wake up to hallucinations of spiders in her bed, after having eaten a Delta-8 cereal bar found at a swimming pool, according to local media reports.
The lack of effective regulatory oversight of Delta-8 was described astutely in an article by Britt E. Erickson in an article for Chemical & Engineering News: “With no regulatory oversight and limited laboratory testing, most products sold as delta-8-THC are not actually pure delta-8-THC. Such products typically contain a high percentage of delta-8-THC and small amounts of other cannabinoids, including delta-9-THC, and reaction by-products. Some of the cannabinoids are not naturally found in cannabis. In most cases, nothing is known about the health effects of these impurities,”
Another recent article in Emergency Medicine News, authored by Dr. Leon Gussow, echoes this warning: “The delta-8-THC market is unregulated, and products may not undergo thorough analytical testing, creating a risk that the product may be contaminated with heavy metals, pesticides, mold, or other toxic substances.”
Amid the cacophonies of hype and warnings, one thing is clear: the legal grey areas surrounding the substance are likely just beginning. For the time being, the relevant parties are squaring off, with CBD and hemp distributors in Texas planning to challenge the state’s efforts to ban Delta-8 in court, federal authorities increasingly sounding the alarm over its use, and state authorities continuing to mull or take legal action to ban or control its use.