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Pot Shots: A Federal Loophole Has Made Some Cannabis Products More Available

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DELTA FLOW: An essentially unregulated market for hemp products made with Delta-8 THC instead of the typical Delta-9 molecules found in most cannabis products has emerged following the 2018 federal Farm Bill. Fu-ya licensed under CC BY-SA 2.0

DELTA FLOW: An essentially unregulated market for hemp products made with Delta-8 THC instead of the typical Delta-9 molecules found in most cannabis products has emerged following the 2018 federal Farm Bill. Fu-ya licensed under CC BY-SA 2.0

As the federal government tip-toes around making cannabis legal, it’s making what could be a simple and well-regulated cash cow of a business into a complex industry ripe for abuse. 

One example of that is the gaping loophole the federal government, presumably unwittingly, offered in its 2018 Farm Bill that not only makes certain cannabis products legal, but allows underage kids to get their hands on the substance without any regulation.

Today, anyone can buy cannabis products online, just by entering a credit card number and a shipping address on the websites of any number of companies that sell it. No need to show proof of age, or comply with any other state regulations; the order is shipped off and delivery drivers don’t ask for identification. 

These shipments aren’t just coming from established cannabis industries in states where it is legal, though, they’re also coming from independent retailers, like record stores, vape shops, clothiers and—according to some reports—even gas stations. To be excruciatingly clear, this isn’t CBD; this is the kind of cannabis that gets one high. It comes in gummies, vapes, oils, and even the buds of the flower. 

So, how is it possible amid state regulations that forbid the sale of weed outside of licensed shops? It’s because the products in question are derived from hemp, which is legal under the Farm Bill.

The products are made with Delta-8 THC, which is a different form of the THC molecule that makes up most cannabis products for sale in the adult-use market, Delta-9. After the Farm Bill passed, manufacturers started deriving Delta-8 from hemp, often by converting it from CBD, another molecule found in marijuana and in hemp. CBD doesn’t cause a high, but it does have some proven health benefits.

The CBD market has exploded over the past couple of years. There are many good CBD products available at cannabis dispensaries, where the state imposes stringent testing requirements, and elsewhere. Outside the dispensaries, though, there are plenty of iffy CBD products manufactured and sold by shady characters. Some of them don’t contain any CBD at all, or contain less than what the labels claim. 

The Delta-8 market is even dicier. Notably, it’s not even 100% clear whether the Delta-8 products that have become so prevalent are technically even legal under federal or state laws. 

For the moment, the people selling the products insist they are legal because the Farm Bill spells out the maximum Delta-9 levels allowed in hemp or hemp-derived products: 0.03%. Any more than that, and hemp is considered marijuana, which is still banned under the federal Controlled Substances Act. The Farm Bill doesn’t mention Delta-8, however, so as long as the product is derived from hemp, the theory goes, it’s perfectly legal. 

That is how the Delta-8 market became essentially unregulated, allowing kids to buy it, at least theoretically. It’s also subject to the same kind of chicanery by which CBD is often sold, to the deep regret of legitimate sellers of CBD. 

I talked to a couple of doctors who specialize in cannabis medicine and health policy. They both think that Delta-8 actually is illegal, under the Controlled Substances Act. Plenty of lawyers and consultants think so, too, but state and local governments are starting to examine the question. 

Dr. Ethan Russo, CEO and founder of cannabis research company, Credo Science, says if the federal government simply legalized weed, Delta-8 could be tightly regulated and beneficial. For instance, some users report that hemp products with Delta-8 THC offer a milder high than standard-issue Delta-9 weed does. Many say the Delta-8 products also don’t cause anxiety, as more traditional cannabis products do in some people.  

Despite those potential benefits, both doctors warn consumers to stay away from buying Delta-8 anywhere but a licensed cannabis shop. They also agree that, with the right policies in place, there could be a legitimate market for the products.

“It’s hard to tell what’s hype and what’s real potential,” says Dr. Peter Grinspoon, a physician at Massachusetts General Hospital and an instructor at Harvard Medical School. “All the claims for Delta-8 are based on anecdotes. If it were just all legal, we could research it and we could make sure it’s safe—what we need is a regulatory framework.” 

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