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Delta-8 Is The Hottest Cannabinoid To Emerge Since CBD, But Its Legal Status Is Complicated

By Robyn Griggs Lawrence
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The deeper Flip Croft-Caderao and his sister-in-law, Kayla Croft, delved into writing their business plan, the more apparent it became: they would never have enough capital to establish and maintain a licensed cannabis business in California. 

Disappointed but determined, they refused to pivot from their dream. Instead, they sidestepped into hemp, a much more accessible commodity. They figured selling CBD and other nonpsychoactive cannabinoids would give them a good understanding of the plant and the cannabis business, and might even generate the capital they needed to migrate over to THC down the road.

Croft and Croft-Caderao launched Goodekind in early 2020 and sold a decent amount of The Notorious CBG Crumble and Hawaiian Haze hemp flower online. Then, last December, they added delta-8 THC gummies and vapes to the menu, and their business exploded. 

“Delta-8 freaking took off,” Croft-Caderao says. “Oh, gosh, it is crazy. It is definitely our top-selling product by a ridiculous amount.”

If you haven’t heard of delta-8 yet, you will soon. Derived from hemp, it’s the hottest cannabinoid to hit the market since CBD, and its appeal lies in what it does that CBD doesn’t. Like its kissing cousin, delta-9 THC, delta-8 will get you high—just not nearly as high as you get from delta-9. And—for now, anyway—it’s legal (or legal enough) under the 2018 U.S. Farm Bill that allows hemp cultivation and production of hemp-based products.

Entrepreneurs like Croft-Caderao saw a loophole in the Farm Bill’s definition of hemp-based products as having less than .3 percent delta-9 THC. The bill doesn’t address delta-8 THC, which is essentially degraded delta-9, because hemp has miniscule amounts of it—not nearly enough for commercial production. What lawmakers didn’t see coming was innovation born of desperation. Hemp entrepreneurs with a lot of product on their hands found a way to chemically synthesize delta-8 from CBD distillate, creating a new gray market that the feds are ignoring—for now—and states are just starting to address. 

Croft-Caderao sees delta-8 as a perfect blend of the hemp and cannabis industries. “It gets you high, but it’s also unregulated, so you can ship it to people and have an entire e-commerce platform,” he says. “It’s an entrepreneur’s dream.”

The New “It” Cannabinoid

By all accounts, delta-8 is fulfilling consumers’ dreams as well. It’s the fastest-growing segment of the hemp-derived product market, New Leaf Data Services reports, with U.S. sales of around $10 million last year. It’s getting a lot of attention—and that’s a little bit worrying for Erica Stark, executive director of the National Hemp Association, which is having a tough time coming up with a position on delta-8.

“On the one hand, we’re still of the mindset that we literally spent years convincing legislators that hemp is not about getting high—and this is really undermining that message and, I think, providing some skepticism about what we say,” Stark says. “On the other hand, the CBD market has suffered with over saturation. This is a way for farmers to find outlets for their biomass and hopefully recoup some of their losses, which might be a nice bridge until some of the markets even themselves out. We don’t want to shut the door on it or demonize it, but we don’t necessarily want to endorse some of the practices we’ve seen with products that are wildly unregulated and potentially harmful.”

Not everyone is as diplomatic. Delta-8 has plenty of critics, both inside and outside the industry. The U.S. Hemp Authority, a third-party auditor for hemp and CBD businesses, refuses to certify delta-8 products. The U.S. Hemp Roundtable called marketing hemp products with any intoxicating value or euphoric effect “irresponsible.” The Roundtable is calling for delta-8 to be regulated like adult-use cannabis.

Individual states are taking radically different, and sometimes unpredictable, approaches to delta-8, just as they have with CBD and delta-9. A random consortium of states that are as far apart as could be when it comes to legalizing delta-9—Alaska, Arkansas, Arizona, Colorado, Delaware, Idaho, Iowa, Kentucky, Mississippi, Montana, North Dakota, Rhode Island, Utah, and Vermont—have banned delta-8, and several more are threatening to. Florida, being Florida, is moving in the opposite direction, toward establishing a legal delta-8 marketplace.   

U.S. Hemp Authority president Michelle Weintraub has not been shy about how angry she is that delta-8 is muddying the waters of her “won’t get you high” industry. Stark, for her part, is annoyed because she never gets to talk about fiber and grain hemp, her passion, because delta-8 takes up everyone’s time and attention. “I love seeing farmers have opportunities,” she says. “But it does just suck all the oxygen out of the room.”

Off to a Nice Spot

Delta-8 delivers about half to three-quarters the high that delta-9 does, a space somewhere between THC and CBD, more body than head. It’s like drinking a Bud Light instead of a Long Island iced tea. Croft-Caderao says you get about 50 to 60 percent of what you’d get when you vape delta-9, but people are reporting they they’re not getting anxious or paranoid with the less-potent cannabinoid. “They’re saying, ‘I can smoke sativas again. I can enjoy myself without getting too high,’” he says. 

Reddit users describe delta-8 as a “productive buzz”—great for when you need help with anxiety or pain but can’t be intoxicated, and “like weed without the anxiety or introspective thoughts.” An occasional delta-8 smoker wrote: “It’s not an incredible high or anything, but if I’m out and active and just want something to give me a bit of a lift, I’ll puff on a cart and get to a nice spot.”

That’s all good for users who have built up a little tolerance, but people trying THC of any kind for the first time (or the first time in a long time) generally have no idea how much to ingest. Because delta-8 is completely unregulated, dosage is pretty much up to each user. Overdose stories are surfacing, surprisingly common among heavy delta-9 users who underestimate delta-8’s potency (or overestimate their own tolerance). This can be especially dangerous when it comes to edibles. Our bodies metabolize delta-8 the same way they metabolize delta-9, by turning it into 11-hydroxy THC, a compound that can be up to 10 times more potent than delta-8.

So, How Is This Legal? 

It’s not entirely clear that it is. The DEA released an Interim Final Rule, open for review until October, that states, “all synthetically derived tetrahydrocannabinols remain Schedule I controlled substances.” That appears to make delta-8, which is chemically synthesized, illegal. But the DEA hasn’t taken any action against companies selling delta-8, and a lot of companies are betting they never will.

Stark says she asked Sean Mitchell, chief of intergovernmental affairs at the Drug Enforcement Administration, about delta-8 during a panel discussion, and he confirmed that any hemp product that is delta-9 compliant is federally legal. That’s just one guy from the DEA, though, and not a final ruling. In the end, Stark is as uncertain as everyone else about legality. “What’s our position?” she says. “I don’t know.”

Croft-Caderao, for his part, expects the market to be regulated—if not outlawed—eventually, and he’s determined to make the most of this window of opportunity while it remains open. “This is the golden era right now,” he says. “This is something that gets you high that is unregulated and that is kind of unfettered.” 

He’s already plotting how to keep his business thriving if and when the feds crack down on delta-8. “Business owners like myself have to be thinking, OK, if this gets regulated, this is how I will be able to pivot and use the skills I’ve learned to enter the cannabis market,” he says. “That’s what I’m thinking about, because who knows how much time we have?”

Here Comes Delta-10

In the new THC numbers game, delta-10 is up next. Another cannabinoid found only in trace amounts in hemp and cannabis, delta-10 THC is often mistaken for minor cannabinoids CBC and CBL. Like delta-8, it can be synthesized from CBD. Delta-10 has mild psychoactive effects but is said to be more uplifting and energizing than delta-8. Users say it’s more like a sativa, while delta-8 leans more indica.

Language Lesson

“Delta” is a term used to describe a chemical reaction that requires heat as a catalyst in a process known as decarboxylation. The numbers that follow that designation show where the cannabinoids bond to the carbon chain. 

Will I Fail a Drug Test?

When it comes down to it, THC is THC. Anything with THC in the name will show up as THC in a drug test and cause you to fail. Don’t say we didn’t warn you.