Is the Delta 8 Loophole Closing?

The Nineth Circuit ruling created a loophole to sell psychoactive substances, like Delta-8, without an age limit, without a possession limit, and without any product safety or contamination standards.

Delta-8 is a cannabinoid found in cannabis but its natural quantities are low. Shortly after the glut of hemp and CBD oil in 2019 people started to synthesize the CBD oil into Delta-8 products. As of early 2021, Delta-8 was one of the fastest growing segments of products derived from hemp. The list of psychoactive substances derived from hemp keeps growing with Delta-8, Delta-10, THC-O, THC-P, etc. and they all fall under this loophole.

To recap recent history in this country: The voters in states that have legalized medical and recreational marijuana voted to regulate a psychoactive substance to patients and adults and to require the product be tested for potency and contamination. Then the 2018 Farm bill legalized hemp nationally. The understanding at the time was THC (Delta-9) was THE psychoactive substance. With hemp being define as 0.3% THC, the assumption was no one would ever get high from hemp products. That was obviously a wrong assumption…

When Delta-8 came on the market some states banned or regulated it while most have done nothing. Most people do not know what delta-8 is. Some products make it more confusing, like Delta-8 Flower. Most people I have talked to that have purchased it say they think it’s ‘natural’ and ‘grown that way’. What most don’t know is ‘Delta-8 flower’ is hemp flower sprayed with delta-8, and in many cases, it has not been tested for chemical residuals, pesticides, metals, or for potency other than THC (Delta-9). The lack of understanding of the product has led to product safety issues.

As of November 21, 2022 - 21 states have banned or regulated delta-8 while four are reviewing its legal status. Currently Delta-8 is legal in 29 states and DC, but that might all be coming to an end with another federal ruling.

‘A federal judge threw out a lawsuit against Kansas’ governor and attorney general that alleged $120,000 worth of delta-8 THC products destroyed by police were legal.’

https://mjbizdaily.com/federal-court-tosses-delta-8-thc-lawsuit-against-kansas-governor/

In dismissing the suit Tuesday, the judge wrote that, “in short, no part of the 2018 Farm Act demonstrates an unmistakable focus to benefit plaintiff or other unlicensed possessors and sellers of hemp products.

“The 2018 Farm Act does not create a private right for plaintiff to (possess) and sell hemp and hemp products, either under Section 1983 or as an implied cause of action under the 2018 Farm Act itself.”

The question now is ‘what's next?’. Is this the end of the Delta-8 loophole? If so how do the feds enforce its new position. Many hemp operations will be impacted by this ruling and should prepare themselves for the change.

Author:
Alex Hearding
Chief Risk Management Officer

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Insecticide Sprayer in Cannabis Farm

6 Ways to Protect Your Employees from Pesticide Exposure

Working in a cannabis cultivation has the risk of pesticide exposure which can lead to serious harm to the employee. The major types of pesticide toxicity are: acute toxicity (occurring from a single incident or exposure) and chronic toxicity (occurring from repeated incidents of exposure for many months or year). Toxic effects by pesticide exposure can range from mild symptoms, like minor skin irritation or other allergic symptoms, to more severe symptoms, like strong headache, dizziness, or nausea. Some pesticides can cause severe symptoms, like convulsions, coma, and possibly even death. The good news for cannabis workers is that most of the most dangerous pesticides to human health are typically not allowed in cannabis facilities, but the dangers are still there. No one deserves to be injured at work and we do not want to bring the pesticide residuals home to our families. So how do we protect ourselves and employees from pesticide exposures? Here are 6 ways to keep everyone safe:

  1. Work Shoes – You must assume every surface in an area that has pesticide applied has pesticide residue and any floor you walk on will leave residue on the sole of your shoes. Shoes that you bring from home should be removed when you get to the facility and replaced with your work shoe. Shoes that are slip-resistant and washable like chef clogs are ideal for cultivations.
  2. Wash Hands – Again we must assume pesticide is everywhere, so every surface or plant you touch will leave residue on your hands or gloves. You must wash your hand before you touch your face, drink, and or smoke. After you touch something in a cultivation area you immediately know I must wash my hands before I touch anything else. When in doubt wash your hands. And if you are using gloves or additional ppe make sure you are removing them correctly. (You can find the CDC guidelines for putting on and removing ppe here)
  3. Read Labels – It is illegal to use any chemical outside the way the label directions say to use it [except in used less quantiles and concentrations, and less frequently] A pesticide label will tell how to mix it, use it with a specific devise, the dangers of the chemical, and apply the chemical correctly. It also describes the specific personal protective equipment (PPE), which leads to number 4
  4. Proper PPE – The label will tell you what specific type and material PPE to use for the best projection from the chemical. This includes type of glove, eye and skin protection, and if respirator is needed. Even if the label doesn’t require it you can voluntarily protect yourself from the chemicals by wearing any PPE that you like. It should be noted if you use respirators (including N-95s) either mandatorily because the label says to or voluntarily your company must have a written respiratory protection program, as defined by OSHA.
  5. Apply Pesticides Off-hours- Many people have sensitivity to pesticides and the obviously pesticide residues are greater after application. It is a good idea to apply pesticides during off-hours as to allow the chemical residue to reduce over time and give your sensitive employees a break for the higher exposure.
  6. Adhere to the Worker Protection Standard – And last but not least your business must adhere to the Worker protection Standard (WPS). This is a federal standard that applies to all agricultural workers and pesticide handlers, which is essentially anyone who works in a cultivation facility. While it is an federal EPA standard it is typically enforce by the state agricultural department in legal cannabis states. The WPS includes pesticide safety training and a central location where certain information must be displayed, and other safety standards. For complete information about the WPS rule requirements, refer to the final WPS rule

Author:
Alex Hearding
Chief Risk Management Officer

Are you ready to be accountable for your business?

Complete this form to talk to one of our risk managers today to ensure financial success in your cannabis business.

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