The cannabinoid already has provoked bans in 12 states: Alaska, Arizona, Arkansas, Colorado, Delaware, Kentucky, Idaho, Iowa, Mississippi, Montana, Rhode Island and Utah, according to Marielle Weintraub, president of the U.S. Hemp Authority, which certifies hemp products (and has recently decided not to certify delta-8 products). Meanwhile, legislative bans are brewing in other states, including North Dakota, Alabama and Oregon.

Florida lawmakers, moving in the opposite direction, have established a legal framework for delta-8.

The emergence of commercial delta-8 simultaneously thrills and worries hemp industry leaders. Prior to delta-8, no hemp products got people high.

“The [2018] Farm Bill passed with the understanding that hemp is nourishing, hemp could be food, used in supplements, used as fiber or grain. And hemp is not intoxicating,” Weintraub tells Hemp Grower. “Delta-8 defies the intention of the laws and the rules. I think it’s incredibly short-sighted and can bring down the entire hemp industry before we’ve had the chance to show people what this plant can do. Delta-8 makes me so angry.”

Erica Stark, executive director of the National Hemp Association, describes delta-8 as “complicated.” On the one hand, she acknowledges critiques of delta-8 that revolve around its psychoactive properties. The industry, she says, devoted years to convincing lawmakers that hemp was an extremely useful and versatile product, one that would deliver myriad commercial opportunities to farmers, manufacturers and stores, none of which involved people getting stoned. Delta-8 throws that into question.

But, on the other hand, she says, “anything that can help hemp farmers and entrepreneurs be successful is something we support.”

“People want it and should have access to it,” she says. “It’s a good use for excess hemp material. It might help businesses survive while we wait for regulations on CBD from the FDA, which should further open CBD markets.”

Stark says delta-8 is a topic of rising concern for the nonprofit. It is collaborating with members in different states and considering drafting model legislation for hemp stakeholders in states to offer in the event that lawmakers start holding hearings about the cannabinoid.

The market does not yet offer firm sales data surrounding delta-8. But Trevor Yahn-Grode of cannabis data analytics firm New Frontier Data told MedPageToday.com that retailers nationwide sold at least $10 million of the cannabinoid last year.

Delta-8 is one of more than 100 cannabinoids found in the hemp plant. The most famous cannabinoid, delta-9 THC, is the compound in cannabis that tends to get people “high.” While botanists would call hemp and cannabis the same thing, the 2018 Farm Bill established a legal difference. If the plant contains no more than 0.3% THC (delta-9 and THCA) on a dry-weight basis, the federal government considers it hemp. Any amount above 0.3% and it’s not hemp—and not within the bounds of federal regulations.

Why does the hemp industry worry about delta-8, a cannabinoid derived from legal hemp? After all, the farm bill determined that all hemp-derived cannabinoids are hemp and not controlled substances.

Concern revolves largely around how delta-8 is produced. The cannabinoid is present in hemp, but in minuscule amounts. Extracting naturally occurring delta-8 from hemp for commercial production, at least for now, is not financially viable. Instead, manufacturers synthetically alter hemp-derived CBD through a chemical conversion that turns the cannabinoid into delta-8, allowing them to produce it in larger volumes.

In August 2020, the DEA released its interim final rule on hemp, stating that “synthetically derived tetrahydrocannabinols remain schedule 1 controlled substances.” But does the DEA consider delta-8 “synthetically derived”? If so, the agency has yet to take action against companies selling the cannabinoid.

Regulating Cannabinoids

The most well-known cannabinoid in the hemp plant is CBD, found now in supplements, tinctures, dog treats, salves and much more. That market booms. But as companies isolate and market more and more cannabinoids, such as CBG and now delta-8, the cannabinoid marketplace promises to expand, potentially dramatically so.

As new cannabinoids derived from legal hemp enter the market, federal agencies should steer clear, says Jody McGinness, director of operations at The Hemp Industries Association (HIA). The nonprofit is paying close attention to state actions, which are a “concern,” he says. McGinness adds that the HIA collaborates with state hemp associations to help them achieve their goals and “benefit the whole hemp economy.”

“To start ruling things out on the basis of this quality or that quality sells the hemp market short,” he says. Delta-8, he says, is “in the pantheon of things to be excited about with cannabinoids. Even our understanding of CBD is only an inch deep. We have only begun to explore what this plant can do.”

If federal and state agencies start asserting their authority in what he described as a “Wild West environment” every time a cannabinoid is introduced into the legal hemp market, he says, it will hamstring a nascent but blossoming industry.

“Delta-8 is a minor cannabinoid that can be extracted from hemp. We’d like to see a path to market. We don’t see it as complicated,” says McGinness. “The intoxication thing is the headline grabber. But the story is we need a framework to make sure hemp has its place and extracts have their paths to market.”

Adds Stark: “Who knows what will be discovered next? Delta-8 came out of nowhere [to the commercial market]. We are only scratching the surface of the more than 100 cannabinoids found in hemp. We need a single framework to address all of them.”

The FDA could deliver a big part of the potential framework for CBD, if not all cannabinoids from hemp.

The industry has been calling for an FDA ruling on hemp-derived CBD. The agency currently views the cannabinoid as illegal to add in all products outside of the pharmaceutical drug Epidiolex, in which CBD is an active ingredient. Just as manufacturers cannot add the active ingredient in Viagra, sildenafil citrate, into products like drinks, chocolate bars and tinctures, they also are technically forbidden from using CBD. But the FDA has so far taken a mostly hands-off approach with CBD.

In short, CBD is largely unregulated at the moment, existing in a legal limbo.

Regardless, enthusiasm for CBD turned downright effervescent after the passage of the farm bill, and it remains awfully fizzy. And fervor for delta-8 now is growing rapidly.

Jeff Greene, development director for The Florida Hemp Council, says delta-8 has played a large role in helping farmers sell their excess biomass in a flooded market.

“I have members that are deeply involved with it. I own a small interest in six retail stores in Florida, and I will tell you, delta-8 percentage of sales has increased between three- and four-fold in the last quarter,” Greene says.

Rather than the DEA’s or state regulators’ effects on delta-8, Greene worries more about battles between hemp, pharmaceutical and cannabis interests that could harm the cannabinoid’s role in the hemp industry.

Delta-8, he says, will infringe on the monopoly that cannabis currently has on people seeking psychoactive results from cannabinoids. At the same time, pharmaceuticals have interests in cannabinoids like delta-8. If the industries fail to collaborate and instead “shoot” at one another, “we’ll see a circle fight with nobody winning.”