Delta-8 and delta-10 have gained considerable traction over the past year. Although these cannabinoid isomers fall in an extreme grey area, consumers are driving up demand. They can be purchased in many different forms – commonly found in vaping products, gummies, and tinctures. Since these two isomers are commonly derived from hemp extract, many consumers see delta-8 and delta-10 as a lawful hemp-derived good that provides a psychoactive effect. This isn’t necessarily true. Even with the 2018 Farm Bill exempting hemp from the Controlled Substances Act (CSA), these recently popular cannabinoid isomers are not automatically legal.

Unraveling Cannabinoid Isomers

There is much discussion whether or not these isomers are synthetic and meet the definition of a controlled substance. To make it more confusing, these cannabinoids are derived from the legal hemp plant. So much to unravel here.

According to the 2018 Farm Bill, “any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 perfect on a dry weight basis”. It appears the loophole falls with the clearly defined “delta-9” and not the broad definition “tetrahydrocannabinol”. If delta-8 & delta-10 do not contain delta-9 and are derived from hemp, what’s the issue? The issue is that these hemp derived isomers contain THC and have a psychoactive effect, hence regulatory oversight is inevitable. To make matters more confusing (or more clear-cut for some), the Drug Enforcement Administration (DEA) issued an interim rule declaring, “all synthetically derived (THC) remain Schedule I Controlled Substance.” Even though the DEA’s recent interim rule was issued, it seems states are handling these isomers differently.

States have unique stances on the allowance of cannabinoid isomers.

Currently, 15 states have banned these isomers and six are under review. Many companies selling delta-8/delta-10 are doing so online where states do not have clear regulatory oversight. However, states are continuing to crack down and this may not be allowed much longer. Manufacturers of these products interpret the 2018 Farm Bill as allowing these isomers, however, because they are synthetically created and not extracted from raw hemp plant material, this may not be allowed under the Farm Bill. The legality of these isomers seems to depend on which state you reside in and varying interpretation of the regulations. States are taking notice; some states have issued strict bans on these products, while some states are still allowing production and distribution.

Colorado

As of May 14, 2021, the Colorado Department of Public Health and Environment (CDPHE) and the Marijuana Enforcement Department (MED) recently published bulletins revealing that THC isomers such as Delta-8 and Delta-10 cannot be manufactured in Colorado or used in Colorado marijuana products. CDPHE further explained that chemically modifying or converting any naturally occurring cannabinoids from industrial hemp is non-compliant with the statutory definition of “industrial hemp product.”

Arizona

Though Arizona regulations does not reference delta-8, their regulations reference general “tetrahydrocannabinols.” Due to this use of the general term, delta-8 is considered a controlled substance in Arizona.

Kentucky

Kentucky is well known for their hemp cultivation. Would a state who is deeply involved in the hemp industry allow such cannabinoids like delta-8? No. The state’s agriculture department has deemed delta-8 THC as a controlled substance.

Florida

In contrast with states taking an abrupt illegal stance, Florida is quite the opposite. According to the Florida Department of Agriculture and Consumer Services, “Delta 8: At this time, any hemp product intended for human or animal ingestion or inhalation which is sold in Florida must comply with all Florida statutes and rules.” It appears Florida has not banned delta-8 or delta-10 products.

If you are a manufacturer or distributor of these cannabinoid isomers, we encourage you to do you research and consult with an attorney.

Consumer Safety Concerns with These Cannabinoids

There are plenty of legal issues surrounding delta-8 and delta-10, but are these products safe to consume? This topic should peak not only the consumer but also the manufacturers and distributors. We needed a cannabis chemist’s perspective for the safety coverage of these isomers. Josh Jones, Ph.D. is an organic chemist and founder of Jonesing Labs. Josh further explained, “As for the current production of Δ8-THC, or other THC isomers converted from hemp cannabinoids (or simpler starting materials), these reactions should be performed using pharmaceutical (expensive!) production techniques to minimize unintended side-reactions and to understand impurity profiles. But I don’t know of any producers or hemp testing labs that offer comprehensive impurity profiling of such reaction products. If this could be done, then we’d likely not have the concern we do over semi-synthetic conversions in the cannabis markets. Still the Wild West…”

It seems there is unknown amounts of residual catalysts in cannabinoid isomers. If these products are not regulated and not held to rigid testing requirements, consumers may be subjected to dangerous by-products. As with all products, do you research before buying, producing, and selling these cannabinoid isomers.

Contact Jonesing Labs at https://www.jonesinglabs.com/

Contact Allay Consulting to learn more about Delta-8/Delta-10 state specific requirements.