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Often packaged like candy and displayed prominently at convenience store counters, delta-8 THC products are popular, profitable and, for now, unregulated.
Delta-8 is a psychoactive chemical compound found in the cannabis plant that can be sold in the form of gummies, brownies and other treats, and bought at dispensaries or corner stores. It is legal at the federal level, but Oklahoma authorities say it poses unforeseen health risks and, therefore, needs tougher government oversight in the Sooner State.
Adria Berry, executive director of the Oklahoma Medical Marijuana Authority, also cautioned that an age minimum to buy such products has not yet been imposed here, which means stores and manufactures are left to set those requirements. That means Delta-8 products could be more accessible to minors, she said.
“Our bottom line is that these products are very similar to medical marijuana,” Berry said. “Some of them are even stronger than medical marijuana products and need to be regulated and tested like medical marijuana.”
Those in the Oklahoma marijuana industry are aware that state authorities have delta-8 in their crosshairs. Some say regulation here will lead to business losses and higher costs passed on to remaining consumers.
Jerry Flowers, owner of Urban Wellness Dispensary in Norman, told The Oklahoman that those without medical marijuana cards make up about 30% of his business.
Flowers said the delta-8 he buys already has been tested in the states from where it comes.
“It would have a great impact on us,” he said. “Right now today, I ship in all my delta-8 from other states. So if they tried to make delta-8 THC like medical marijuana, we have to get everything tested on top of that. Of course, we have to pass that cost off to the consumers. If the state wanted us to retest on top of that, it’s going to be a big problem.”
2023 Farm Bill could affect delta-8 regulation
It’s a problem many states have dealt with since the passage of the 2018 Farm Bill.
The bipartisan legislation had a loophole that made hemp and hemp products legal if they contain no more than 0.3% of a specific cannabinoid, delta-9 THC, or tetrahydrocannabinol.
Delta-8, which might get some people high, is said to have weaker effects than delta-9 THC, the intoxicating component found in marijuana.
Lawmakers in tobacco-growing states were among those who pushed to legalize hemp as an alternative to growing tobacco.
Now, entrepreneurs and regulators are watching Congress to see whether the 2023 Farm Bill will require the U.S. Food and Drug Administration to regulate hemp-derived cannabinoids such as delta-8.
“Everything is gonna hinge off the 2023 Farm Bill,” Flowers said.
Officials, consumers urge FDA to research product quality, adverse effects
Perhaps 50 years ago, researchers did not imagine delta-8 products packaged in colorful bags sitting near packs of gum and breath mints in convenience stores across the United States.
But that’s when the 0.3% threshold was set in a research article by botanists Ernest Small and Arthur Cronquist, who acknowledged that it was adopted "arbitrarily" to distinguish between hemp with "limited intoxicant ability" and that with "considerable intoxicant ability."
The farm bill used that threshold in federal law. State by state, lawmakers have scrambled to craft legislation.
“Hemp-based delta-8 THC products are not addressed in the Oklahoma Industrial Hemp Program,” Lee Benson, spokesman for the Oklahoma Department of Agriculture, Food and Forestry, told The Oklahoman in an email.
“The hemp program rules address delta-9 THC. Any licensed plants producing industrial hemp are subject to at least annual routine inspection and sampling to verify that the plant meets the definition of industrial hemp. Licensed plants may also be inspected if ODAFF receives a complaint against a licensed plant or product.”
Those warnings include an uptick in adverse event reports to the FDA and the nation’s poison control centers; marketing of products in a way that might appeal to children; and concern about contamination due to manufacturing methods.
The FDA says delta-8 THC products often involve the use of potentially harmful chemicals, while the natural amount of delta-8 THC in hemp is very low.
Additional chemicals are needed to convert other cannabinoids in hemp, like CBD, into delta-8 THC, according to the FDA.
The agency says some manufacturers might use potentially unsafe household chemicals to make delta-8 THC through the chemical synthesis process.
The FDA also says some of delta-8 products may be labeled simply as “hemp products,” which may mislead consumers who associate hemp with being non-psychoactive.
The agency also is concerned about products that are marketed for therapeutic or medical purposes that have not been approved by regulators.
“Delta-8 THC products have not been evaluated or approved by the FDA for safe use and may be marketed in ways that put the public health at risk,” the agency says on its website. “The FDA is aware of the growing concerns surrounding delta-8 THC products currently being sold online and in stores. These products have not been evaluated or approved by the FDA for safe use in any context.”
Oklahoma Medical Marijuana Authority Chief of Staff Barrett Brown echoed these concerns when saying Oklahoma lawmakers need to regulate delta-8 here.
“There is no one out there making sure these products are tested to remove heavy metals,” he said. “Consumers oftentimes don’t know what they are getting.”
Flowers, the dispensary owner, said his customers know exactly what they are getting.
His product comes with certificates of analysis, Flowers said. The certificates indicate the growers he buys from have sent samples to third-party labs for evaluation of various properties, including possible contaminants.
“It’s like anything else,” Flowers said. “It all depends on what company you get it from. A lot of companies include certificates of analysis. A lot of companies don't provide that compliance material or evidence of how clean it is. You can get it cheap, but cheap is not always best.”
Flowers suggested the public should be more concerned about drug recalls than delta-8.
“Nobody’s died from this in the history of mankind,” he said. “Not one documented case.”
Still, others urge caution.
“Though similar to delta-9-THC, delta-8 is not well-studied and could have unexpected effects on human health,” Daniele Piomelli, the director of the University of California, Irvine Center for the Study of Cannabis, told The Oklahoman in an email. “Also, it’s made in the lab, from cannabidiol, under poorly controlled conditions. Impurities due to the preparation process may be toxic.”
However, Piomelli said, banning delta-8 might not be a good answer.
“At a minimum, we should make sure the production of delta-8 is done safely,” Piomelli said. “This is a job for the FDA, which unfortunately is underfunded and unable to carry out this type of work. On the other hand, I do not think that making delta-8 illegal — for example, by including it in Schedule 1 — is a solution to the problem. The only tangible effect would be to make it harder for scientists to study it, while shady manufacturers would turn to something else, like delta-10, THC-acetate or whatnot.”
Berry, the authority's executive director, said conversations about delta-8 regulation are being held with state and federal representatives.
Asked about the potential for public concern over the agency’s ability to take on more regulatory responsibility — the authority at times has been under scrutiny for its perceived inability to keep up with enforcing marijuana standards — Berry offered assurances.
“I think that if those statements were made two years ago, I would agree,” she said. “But in the last two years, we've made progress on getting staff in place. We are in a place now where we're making progress on the regulation of the medical marijuana industry. We want to make sure it's regulated, whether it’s us or another agency.”