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.’

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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