Delta 8 vs The DEA
Estimated Read Time - 10 Minutes
On August 20th, 2020 the DEA dropped a bombshell on the hemp industry, which sets some new interim regulations regarding the 2018 Farm Bill. The 2018 Farm Bill allowed opened the door for the hemp industry to exponentially grow by billions of dollars a year because it legalized hemp, hemp extracts, hemp derivatives and cannabinoids in hemp. This shows how hemp products are perfectly legal as long as they contain less than 0.3 percent of Delta-9 THC. However, the DEA’s interim ruling does not take that aspect into account because they now define any dry weight product containing more than 0.3 percent Delta-9 THC as a schedule one substance. The meaning of that is processors generally increase the amount of Delta-9 THC in the product before they get the percentage back below legal standards. As a result of the new implications it makes processors possess a controlled one substance even though the processor previously had a legal product through the whole processing period and then brought the finished back down to the legal 0.3 percent Delta-9 THC. In addition to that, the DEA left out major information in the interim regulations regarding Delta-8 THC derived from hemp. I believe the DEA did this to reassert some dominance over a field where it didn’t as much say because of the 2018 Farm Bill. This personally frustrates me because the Farm Bill made it perfectly clear on the Federal legality stance on hemp and hemp derived products in addition to making hemp separate from marihuana. I believe they did this to stunt the hemp industry’s growth and to instill fear in those trying to push their new products in this booming market. Although this is only an interim ruling on the DEA’s part, so the ruling can be challenged and comments can be sent, which I highly suggest all should in regard to how atrocious this new set of regulations are. Many hemp companies have already taken legal action in pursuit of suing the DEA over the regulations, and I suspect after a very long legal battle that the hemp companies will come out on top. Yes, the DEA does have the government backing them in this case, but the 2018 Farm Bill explicitly made hemp products containing less than 0.3 percent Delta-9 THC federally legal. After analyzing the new regulations and the Farm Bill, it seems to me the DEA are trying to be nit picky with what products are determined to be federally legal and how that legal status can be determined even though it was set in plain language back on December 20th, 2018. One issue with the Farm Bill is that it did not discuss the legality of processing hemp, which raised the issue of what is a legal way to process, and that is how the DEA found their niche to jump into the hemp industry to set their regulations and take charge of producers. The major issue with the hemp extraction process is that it becomes “wet hemp” and that hemp has levels of Delta-9 THC that are above the legal limit. Even if the final product of the wet hemp is below the legal limit of 0.3 percent Delta-9 THC, the product is still determined to be illegal from the processing procedure standpoint. I personally find this aspect of the bill to be ridiculous because the buyer is not consuming a finished product with Delta-9 THC levels that are greater than 0.3 percent.
Yes, I understand that the product did have illegal amounts of the Delta-9 THC in it at some point during processing, but the consumer is not inhaling that amount of Delta-9 THC. I will admit as a Delta-8 THC cartridge company owner, I am very biased against the DEA’s ruling, but even if I took the bias out of this, the consumer is still consuming a legal final product (speaking on terms that the final product has less than 0.3 percent Delta-9 THC) that they (the DEA) deemed illegal because of how it was processed. This way of thinking makes me wonder how this makes sense, because there are many products that are legally unfit for consumption or use before they are finalized in processing, so what makes hemp any different from those other goods? This brings us back to the situation of the DEA wanting to maintain its control over the cannabis industry even if it doesn’t align with previous federal laws. Some could call the DEA a loose cannon because they seem to only follow their agenda of attacking companies that were previously federally legal and proceed to change laws to make them work with their code on how the industry should be controlled. As a result of the DEA making forceful changes like this, they ruin many people’s businesses and lives because many entrepreneurs flocked to the vast and speedily growing hemp industry after the 2018 Farm Bill was passed because there was a new market with unlimited growth. But now that market could come crashing down because of almost unconstitutional regulations being passed by people that have no business other than to disrupt the hemp and cannabis industry. Although the DEA believes that their new regulations conforms to previous laws in the Controlled Substance Act and doesn’t add any new requirements. Many legal experts seem to disagree with their new rules and regulations because they view it as a power grab to preserve its presence in the cannabis field, like I mentioned earlier.That is why I would like to reiterate the importance of fighting these interim regulations, whether it be in the comments you can send to the DEA or by taking legal action. Now for the Delta-8 THC derived from the hemp aspect of this farm bill, which is the part I'm sure many of those joining this market are worried the most about. Delta-8 THC is typically processed synthetically from CBD to be able to produce a high quantity of it because there is a very low naturally occurring amount of Delta-8 THC. This could raise the issue of the DEA slapping on some new rules for the processing of CBD that could outlaw Delta-8 because there are no previous rules made for synthetic processing of CBD. The DEA could ultimately crackdown on the synthetic processing of Delta-8 THC and end the product because natural production would not work well for producers at all. The silver lining for Delta-8 THC is that it is not explicitly mentioned in the interim regulations whatsoever, so Delta-8 THC will remain to be in a legal gray area until there are further regulations or laws passed about the product. I believe Delta-8 will have regulations put on it in the future, to what extent, I am not sure, but this is a temporary green light for Delta-8 producers, wholesalers and retailers who sell Delta-8 to continue on as before. Before continuing business as before I highly suggest having a legal team behind your company incase of further regulation being passed and to interpret it. Another thing to add is that these regulations are interim meaning that they could be changed, and Delta-8 THC could be added to those previous regulations or it could stay in the same legal gray area as before. So sadly, only time and legal action will tell the ultimate fate of it. I personally believe it complies with all federal regulations and should remain legal for a longer term because it does not contain more 0.3 percent Delta-9 THC like how the 2018 Farm Bill states that that is the legal boundary for hemp products being legal.
Delta-8 THC is a perfect example of a product that has been subject to what many deem to be a “grey area.” October 20th, 2020 will an interesting day for the hemp and Delta 8-THC market because the DEA will be making their interim ruling final on that day. The NHA also believes that these regulations are imperfect and almost like a step away for the DEA from the hemp industry. I find that interesting because it seems that the DEA is trying to get more involved and have more control. The thing we can all agree on is that no one in this industry can or should trust the DEA at all in this industry, they have been and always will be against us; against safe and legal regulation. One thing to remember with this sham of new regulations is to not overreact to new regulations until they are legally dissected. Many companies believed Delta-8 THC was done for. I have personal experience in that department because some of those in the hemp industry don’t want to touch the product out of legal fear, but there should not be any fear with this product for the time being. This product is safe and knowing those who have tried it all have preferred it over CBD. Now for the process, the synthetic process the DEA discusses involves a man made chemical instead of the process where someone in a lab isomerize an organic molecule to another. Delta-8 THC is therefore not lab created but organically created and remains as the substance it intended to be. This can be a huge discrepancy for Delta-8 THC production because if the DEA continues their raid on processing of synthetic production, Delta 8-THC may not even fall under those regulations because of how it is produced. This creates yet another potential legal gray area for the product as well. Another huge point for Delta-8 THC, is that the DEA can not regulate unscheduled drugs without following standard procedures, so the DEA cannot change the legality of Hemp derived Delta-8 THC without scheduling a ruling. This leads us to the point where the DEA should be making it clear what their intentions are with Delta-8 THC and not just releasing an interim regulation document. As a producer of Delta-8 THC it is frustrating what the DEA is doing with this particular substance because they obviously know about it and what it does, but have not acted upon it directly yet. This begs the question of are they not prepared to and need to do further research on the substance? Or is the market for the substance still so small they do not see a need to explicitly regulate it yet? Or is it just too much of a legal issue to try to ban or to regulate it to make it illegal? I believe it is a combination of those three questions because there is not much FDA research on Delta-8, the market for Delta-8 THC is still quite small in comparison to CBD for example, and the legal allowance for Delta-8 THC derived from Hemp is quite complicated for many reasons. The legality of Delta-8 THC derived from hemp is interesting because it is lower than the 0.3 percent Delta-9 THC legal barrier, its synthetic processing is unique in the instance of no man made chemicals are added and that it stays as the product it intended to be and there are no explicit laws against it. One very important factor to remember is that those aspects only cover Delta-8 THC derived strictly from hemp because the hemp provides another legality allowance for Delta-8 THC to be legally processed and sold. Right now it is September 18th, 2020 and there is much talk with a lot of questions with few answers on what will happen to the hemp market after regulations imposed last month. Right now we as a community need to make those comments to the DEA to get them to loosen their grip on our industry and to fight for the right to produce our federally legal products. I hope this blog was very helpful, informative and inspirational for you viewers reading this.
Bentley Post
Information found in this article courtesy of:
https://www.jdsupra.com/legalnews/dea-issues-hemp-and-cbd-rules-to-71517/
https://www.hempgrower.com/article/what-dea-interim-final-rule-hemp-really-means-industry/