States look to regulate weed alternatives like delta-8 as sales explode

Michelle Peace will sometimes dip into a convenience store and emerge with a handful of hemp products like delta-8. They come in gummies, tinctures, vape cartridges and joints and they're designed to get you high.

Despite knowing glances from cashiers, Peace isn't headed to a party. She's the director of the laboratory for forensic toxicology research at Virginia Commonwealth University, and she's bringing her collection to the lab to see what's inside. In some cases, no one else is checking.

Hemp products that can get you high have proliferated online and at corner stores, even in places where marijuana remains illegal. The products, marketed under names like delta-8 and delta-10, have been a lifeline for the struggling hemp industry. Even critics of the products acknowledge some companies maintain high standards for their products, with credible lab testing and careful quality control.

But federal regulators aren't monitoring what's in the products. Peace and other researchers have found problems ranging from irregular dosing to heavy metals. Some edibles have packaging and labels that mimic common candy or cereal ("Stony Patch THC Gummies" or "Fruity Pebblez"), and there's been a spike in calls to poison control centers related to delta-8. Newer products, like THC-O, can be even more potent, according to Peace.

"Delta-8 is like, 'Look at me, look at me,' and there's a monster behind the bush," Peace said.

Still, a recent federal appeals court verdict appeared to uphold the legality of delta-8 products on the federal level. In the absence of clear federal regulations or guidance, lawmakers in states like Colorado and Oregon have taken matters into their own hands with bans on the products.

"There has been a real battle going on in state capitals across the country to try to resolve this issue," said Jonathan Miller, general counsel at the U.S. Hemp Roundtable.

Some in the hemp industry are fighting back. State regulators in Texas, Kentucky and Kansas are facing lawsuits from the hemp industry over new restrictions. In Virginia, regulators were met with occasional jeers and angry outbursts at a meeting earlier this month after they announced new restrictions on edible delta-8 products.

Some of the hemp entrepreneurs at that meeting said regulators were using bad actors to villainize an entire industry. Many argued for regulation rather than prohibition, which they argued would just hurt Virginia's competitiveness in relation to other states with friendlier laws.

"I'm about 45 minutes from the Tennessee border," hemp processor Kerry McCormick told Virginia's hemp commission. "About 15 of my jobs are about to get outsourced to Tennessee. That's going to be on this committee."

The products have their origin in the 2018 federal Farm Bill legalizing hemp. The bill defined hemp as containing less than 0.3% delta-9 THC – the chemical compound in marijuana largely responsible for the high. But the bill was silent on other psychoactive compounds like delta-8 THC. It's found in trace amounts in cannabis plants, but can be created in larger quantities by chemically synthesizing cannabidiol, a chemical better known as CBD that is found in cannabis plants, in a process that involves acid, time and post-processing. Unlike THC, CBD does not create euphoria or intoxication.

Miller, who helped write the 2018 legislation, said its authors had no intention of legalizing intoxicating products.

"I can assure you that as of 2018, neither I nor most of the folks that were involved in drafting this legislation, such as Senator Mitch McConnell [R-Kentucky], had any idea what delta-8 THC was," Miller said.

In May, the 9th Circuit Court of Appeals in California said that wasn't an excuse. If Congress didn't intend to legalize delta-8, "then it is for Congress to fix its mistake," the three-judge panel wrote in its unanimous decision.

Miller said the 2023 Farm Bill may do just that by bringing together scientists and regulators to try to close the loophole. And last week, Senate Majority Leader Chuck Shumer introduced a bill decriminalizing marijauana that would also regulate products with other types of THC, like delta-8 and delta-10, though it faces steep hurdles to passage.

Some customers, like 23 year-old Sean Dudley, said the products are most appealing when legal marijuana isn't available. Dudley said he tried delta-8 after moving to Wisconsin, where marijuana remains illegal, during a post-college funk.

"I found ultimately that using delta-8 was a much more introspective and nice experience than any time that I used weed," Dudley said.

Still, Dudley said he returned to legal marijuana after moving back to Virginia, where possessing marijuana is legal but retail sales have yet to begin.

Some cannabis entrepreneurs say moving the needle on retail marijauna sales should be the focus rather than dwelling on products like delta-8. Anthony Miyares, who grows, processes, and sells hemp products out of Old Manchester Hemp Company in Richmond, Va., would rather focus his activism on that goal in Virginia, where lawmakers in the divided state legislature failed to agree on a path forward for retail marijuana sales.

"I wish that people were fighting this hard to regulate cannabis," Miyares said.

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