Episode 82 – The Buzz on Delta-8



Joe: On this episode of the "CPG & CBD University Podcast," the industry high on the minor cannabinoid Delta-8. We take you behind the buzz with industry advocate and attorney, Rod Kight. What exactly is it? Is it legal? Why it's gaining in popularity, and can regulations derail the momentum? It's all about Delta-8 on this episode of the "CPG & CBD University Podcast" and it starts right now. I'm Joe Agostinelli, host of the "CPG & CBD University Podcast." If you're a returning listener, welcome back to our podcast. If you are a new listener, we are glad you found us on your podcast platform of choice. Don't forget full video episodes on the Global Widget YouTube channel, and no matter where you get your podcasts, hit that subscribe button to get notifications when new episodes are released.

And it's one of the hottest topics in our industry right now. This episode, we are talking all about Delta-8-THC, a minor cannabinoid of the cannabis plant. And joining me for this episode via Zoom, as always, is industry advocate and attorney, Rod Kight. Rod, welcome back to the podcast, and for the first time on the new look podcast.

Rod: Yeah, that's right. The CPG & CBD University look. I like it a lot. It's good to be back. It's always nice to talk with you so thanks for having me.

Joe: Yeah. I know. Any time we enjoy having you here on the podcast. We look forward to when we can have you back in studio when you're back up this way. So let's get right to it. So many questions about Delta-8 but let's start with the basic one. What are we talking about when we say Delta-8-THC, for those who may not be familiar?

Rod: Yeah, sure. You mentioned that it's a minor cannabinoid. A cannabinoid is a compound that's produced by the cannabis plant, both by marijuana and hemp, CBD being one that a lot of people...probably most of the people watching this are familiar with. Delta-8-THC is a minor cannabinoid that's definitely having a major impact on the industry and the law right now. There are lots of cannabinoids, well over 100, and THC is the one, in addition to CBD, that's probably the most formidable. It's been around...people have known about it for decades and decades.

Delta-8-THC is a particular form of THC. There are at least 30 isomers, which are similar chemical compounds of THC. Delta-9 is the one that is the most notable and the most famous. It's often abbreviated as THC, but it's actually Delta-9-THC. It's also the one that spelled out specifically in The Farm Bill, and limited in the concentrations that are lawful in a hemp plant, which is what gives rise to the legal issues that we're going to talk about today with Delta-8-THC.

Joe: And what type of products are we talking about, when we talk about Delta-8?

Rod: Yeah, sure. So Delta-8-THC products are very similar to the type of products and array of products that you see with CBD. You know, there are vaping products. There are gummies and other edible products. There are tinctures. And I have not personally seen a topical, but it wouldn't surprise me if we start to see topicals. And just the range of ways that people consume cannabinoids, in general, we see those and are going to see more of that with Delta-8.

Joe: If you hear some background noise, if you hear some of the wildlife down there in Mexico in the background, so...

Rod: That's right. We have the birds chirping in the back.

Joe: Yeah. So what about the legality of Delta-8? Much like CBD, there's no federal regulation outside the 2018 Farm Bill. So it's, basically, all up to the States right now?

Rod: Yeah, so we start with the Farm Bill, the Federal Farm Bill. Congress said that hemp is legal, and specifically that we have the cannabis plant, which is that cannabis is the technical term. And under the legal framework, we have marijuana and we have hemp. And hemp is cannabis with no more than 0.3% Delta-9-THC. And it defines hemp pretty broadly. It said it's the plant, cannabis sativa, with no more than 0.3% Delta-9-THC, but also includes its cannabinoids, its extracts, its derivatives, its isomers, and so on and so forth.

And so we look at it at a federal level, it's absolutely clear that Delta-8-THC, that's derived from hemp, is perfectly legal, meaning it's not a controlled substance. Now the FDA, which regulates products that we as humans and as animals ingest, has not stepped in to regulate Delta-8. It's a fairly new product to the market. It hasn't even regulated CBD. It's had some frequently asked questions, and some warning letters about people making medical claims, but the FDA hasn't created regulations about CBD, and it definitely hasn't gotten to Delta-8 yet.

Joe: And is the lack of federal legislation leading the popularity of Delta-8 in the marketplace? Or is this another byproduct of cannabis that consumers are flocking to?

Rod: I think both. You know, I think what happens is federal law says, well, hemp is removed from the Controlled Substances Act, and therefore it is a Federal level. It's lawful. It's not a controlled substance. And in the meantime, there is a major demand for hemp-based products by the population, and a growing demand. As the population becomes more educated about them, people begin to experience them and the effects they can have positive, you know, in terms of pain and anxiety relief, and just general wellbeing. You know, I don't sell or make a product, so I can talk about the relief it's given to me. You know, but generally speaking, the population likes it, and Delta-8 just happens to be the particular cannabinoid that's of great interest right now. We're going to continue to see more rollout over the years.

Joe: And talk about the pushback from dispensaries against retailers carrying Delta-8 products?

Rod: Yeah, so we do have some pushback from traditional marijuana dispensaries. And the way it breaks down is, essentially, Delta-8 products you can feel... I've heard a friend of mine said that Delta-8 is CBD that you can really feel. And so a lot of dispensaries, marijuana dispensaries, are subject to very strict regulations and guidelines, whether they're in California, or Nevada, or New York, or Florida, as to the marijuana THC products that they can sell. And then now we have Delta-8-THC from hemp that's available throughout the country, at least in most states, and you can order it online.

And suddenly, they're seeing a similar product and having a lot of competition, and I think it's driving down their sales. And so they say, wait a second, you know, we're a dispensary, we're subject to all these regulations, and yet a very similar product is being produced by hemp producers and put out to the world, and they're not subject to those same regulations. This is unfair.

And I understand that. It's the product of this bizarre system we have in the United States where we divide cannabis up and put it into two legal buckets. And they're completely different legal tracks. And in the meantime, we have...cannabinoids are produced by both marijuana and by hemp. And so suddenly they can be produced by either one. And so if they can be produced by hemp, they're widely available. If they can only be produced by marijuana, then they're not so much. And so you have this conflict that arises, that really shouldn't be there. But it's the product of the legal regime that we're under right now.

Joe: And without federal regulation on CBD products, do you see the government taking action on Delta-8 anytime soon? Is there a possibility maybe the two can be combined into some sort of federal legislation?

Rod: Yeah, well, I actually testified at the FDA's first and only cannabis public hearing. And it was mostly about CBD because CBD was fairly new at the time, and there was a lot of push to have it regulated. But that was about cannabis and cannabis compounds, in general. So I think it's certainly possible that the FDA could come in and regulate cannabinoids generally, which would include CBD, include Delta-8, include some of these other minor and novel cannabinoids that we're going to see coming down the road, CBC, and CBN, and CBG. That's certainly a possibility.

One thing we do know, though, is that a lot of law enforcement contends that Delta-8-THC is illegal, that it is a controlled substance. And we've seen certain states, certain departments of agriculture, and attorneys' general release statements contending the Delta-8 is illegal. So on the federal side, we haven't seen anything yet from the authorities about this. We may. On the state side there we are seeing this vacuum being filled, and certain states are coming in and saying, oh no, this is unlawful in our state, or it is lawful in our state, or they're remaining silent on it. So I think, in a similar way that CBD rolled out over a series of years, we're going to see Delta-8, you know, be regulated in a patchwork, so to speak, among the states.

Joe: And does this remind you of California where the thing is still happening with CBD?

Rod: Oh, it does. Yeah, you know, California, strangely, to be so incredibly progressive when it comes to cannabis reform generally, has been very regressive when it comes to hemp and in particular CBD. And so yeah, I think we're going to see very similar types of actions and policies with respect to Delta-8, and potentially other cannabinoids until we really have a federal position. And we really have been in the cannabis industry, and I mean that in a big way, both marijuana and hemp, at the federal level for some years. I think we're going to continue to see certain states step in, and a lot of times with regressive policies, a lot of times with progressive policies, and all that will shake out. But it's going to be a while before it does.

Joe: And we talked about some of the other minor cannabinoids earlier, and obviously, Delta-8 is the latest of those making headlines. Are there other ones that consumers and retailers should be on the lookout for? I recall at the beginning of the year, and even into last year, we were talking about CBN, CBG. But I mean, it kind of feels like Delta-8 just passed them right by?

Rod: It just leapfrogged. Yeah, exactly. So yeah, CBG was likely, at one point, to be sort of the next big cannabinoid. CBG is fairly easy to extract, and it has no psychoactive effects whatsoever but has a lot of potential for a lot of health benefits and it pairs up really nicely in CBD products. So we've seen some of that, and there are a lot of good reasons for it. But it never... To date, it has not gotten traction with consumers. I think it will. CBC is a very similar type of cannabinoid, and I think it will be used in formulations a lot. But I don't know that it will jump out on its own.

I think CBN may. And CBN may because it tends to help people with sleep and insomnia at least, anecdotally, and there have been a couple of clinical studies. So we may see CBN jump up there pretty soon. But Delta-8, you're absolutely right. It just came to the forefront and blew right past all the others and said, hey, I'm going to be the next one here. And consumers are really responding to it.

Joe: Now I've also seen some of the headlines when it regards to... Obviously, Delta-9 is talked about, but now I also see headlines about Delta-10. Is that up and coming or are they just looking for the next big thing?

Rod: Yeah, so I think we're going to see these THC compounds and derivatives probably sort of take the limelight for a while. So just to back up a little, we talked about Delta-9, we talked about Delta-8, you mentioned Delta-10, the tetrahydrocannabinol molecule, the cannabinoid itself, has what's called a Cyclohexane ring. And I'm probably mispronouncing that because I'm a lawyer, not a scientist. But that ring consists of carbons with a covalent bond between them. And there is one double bond on that ring. And the position of the double bond determines whether we call it Delta-8, Delta-9, Delta-10.

And so, it affects, to a pretty large degree, how it affects our bodies, how it interacts with our endocannabinoid system. And also, for the reasons we've just discussed, the position of that bond, due to the way the law is written absolutely affects the legal status of these compounds.

Joe: All right. Thank you again for joining me on this episode of the CPG & CBD University Podcast. Always great to have you on. And sometime we're going to have to get together here in studio and have you back up here to visit.

Rod: I'd love that. Absolutely. Thanks for having me.

Joe: Industry advocate and attorney, Rod Kight, my guest on this episode of the "CPG & CBD University Podcast." And for more great information on all of Rod's articles and blogs, visit his website at cannabusiness.law. That's C-A-N-N-A-B-U-S-I-N-E-S-S.law. We'll have a link to that in the podcast description of this episode. And thank you for tuning in to this episode of the "CPG & CBD University Podcast." If you have not yet done so, I invite you to subscribe to our podcast wherever you get your podcast and catch full video episodes on the Global Widget YouTube channel. I'm Joe Agostinelli, host of the "CPG & CBD University Podcast." Thanks for tuning in.

These statements have not been evaluated by the Food and Drug Administration. CBD products are not intended to treat, cure, or prevent any disease or condition. Always consult with your personal physician about CBD and using CBD products. CBD should never be used by anyone under the age of 18. This podcast is not intended to provide legal advice regarding the legal status of CBD and CBD products.