Background
Historically, hemp was grown for fiber and grain. Although marijuana and hemp are the same species, the plants grown for hemp would not get you high and would simply result in a headache and burning lungs. Hemp is defined as Cannabis sativa <0.3% THC, but there are other cannabinoids of interest, especially to drug development companies as Cannabis has been used in medicine for thousands of years and has many documented pharmacological applications.
Interest in cannabinoids such as cannabidiol (CBD) has led to the development of plants with low THC content and fit into the definition of hemp. In 2014, the Farm Bill legalized hemp in all 50 states, and farmers began growing hemp, although most were not growing for fiber or grain, they were growing CBD rich Cannabis plants and selling the biomass to processing companies who would then extract cannabinoids for products to sell on the legal market, as they were largely devoid of THC and could not get you high.
Various “legal” CBD products such as tinctures, lotions, edibles, and even for whole smokable hemp flower began to emerge, and the price of raw hemp biomass, extracts and isolate was very lucrative. This was an unregulated market. The FDA had approved CBD as a drug ingredient for Epidiolex, a medication for childhood seizure disorders, but CBD was not approved for sale in food, supplements or cosmetics. The FDA (in charge of regulating drug and food ingredients) said it was not approved for products flooding the market, but as long as plants were under 0.3% THC, the USDA allowed the plants to be grown and sold. In the summer following the Farm Bill, CBD isolate was selling for $25,000/kg. This was incentive for companies to develop products and for farmers to grow CBD rich hemp. Everything was going well, but the market became flooded. Farmers ditched their crops for hemp, and extraction companies popped up everywhere. The extraction process and products had no oversight- the whole market was unregulated and was akin to the Wild Wild West- every man for themselves. Consumers jumped on the bandwagon too as they were hearing all the great benefits of CBD and being inundated with CBD products on the internet, supermarkets, and gas stations. The cat was out of the bag, and there was no way the FDA who had let the market go unchecked could reel it back in, so what they chose to do was to simply require companies not make any medical or health claims on their products. This is still the case.
With the flood of farmers growing hemp and the number of companies processing hemp for extracts, the market price for CBD tanked, and many growers and companies suffered financially. Farmers were left with biomass with no buyer, and companies were sitting on tones of isolate and extract that they could not sell. The future was looking bleak.
In the meantime, some folks and states had interpreted the Farm Bill definition for hemp as being <0.3% delta-9-tetrahydrocannabinol (Δ9-THC) using gas chromatography (GC) or other similar methods. Now, GC uses heat in the analysis to determine THC content, meaning THCA in the plant would be converted to Δ9-THC. However, high performance gas chromatography (HPLC) another method used to determine THC content uses no heat, and therefore analysis shows THCA content with usually only a little Δ9-THC that was converted in the plant due to time and temperature conditions during drying and storage. This was the “delta 9 only” argument in states taking the stand that only Δ9-THC would be considered in determining compliant hemp.
The USDA caught wind and issued an interim rule (indicating a upcoming rule changes) clarifying that the THC content needed to be assessed using GC or use the conversion factor THCtotal = Δ9-THC + (THCA x 0.877) to determine the potential THC content following decarboxylation. This conversion removes the atomic weight of the carboxyl group to give an accurate % by dry weight of the flower material. “Since not all testing methods include decarboxylation, AMS is requiring that the total THC, which includes the potential conversion of tetrahydrocannabinolic acid (THCA) into THC, be reported and used for purposes of determining the THC content of a hemp sample.” This was disconcerting to farmers, companies, and state agencies who had been using the “delta 9 only” interpretation, because this was a much harder goal to reach. Many farmers decided it wasn’t worth it to stay in the hemp game as not only was the market price low, but now compliance was much more difficult. The USDA Final Rule was published in January of 2021 to be in effect on March 22 2021.
But what does all this have to do with the delta-8-THC that is being sold everywhere?
The new rule stated ““hemp” means the plant species Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”
Delta-8-THC is an isomer of Δ9-THC that is made in a lab by taking CBD isolate extracted from hemp and converting it to Δ9-THC and then to dΔ8-THC. The process to do this uses catalysts such as acids which if not removed from the final product are unsafe for consumption. Moreover, if the lab performing the conversion does not not have personnel with the adequate training and/or background in chemical engineering, the conversion my be incomplete resulting in product much higher in Δ9-THC than is legal under USDA regulations.
This year we are also seeing a rise in other "legal" hemp derived products such as Δ10-THC, Δ8-THC-O Acetate and Δ9-THC-O Acetate, Hexahydrocannabinol (HCC), and even hemp derived Δ9THC. These products are also produced in the unregulated market and made in laboratory conditions using catalysts. They are not products made by the cannabis plant and are not found in significantly measurable quantities under naturally occurring conditions. Delta-9-THC flower is "infused" or sprayed with Δ8-THC isolate- there is no natural biosynthetic pathway for the plant to manufacture Δ8-THC. One more consideration is that there are really no verified available standards for these compounds for testing labs to use, so lab results measuring these compounds are questionable and should be taken with a very large grain of salt.
Some Helpful Facts
1. At the federal level, hemp (Cannabis sativa <0.3% THC) is legal, but Cannabis with a THC content higher than 0.3% (marijuana) is illegal. All but 7 states allow medical marijuana, and 16 state allow adult use recreational marijuana.
2. Tetrahydrocannabinol (THC) has isomers (slightly different chemical arrangements), the most common and well known of which is Δ9-THC. The plant does not make Δ9-THC, but rather manufactures tetrahydrocannabinolic acid (THCA) which is converted to Δ9-THC generally with the application of heat to remove the carboxyl group.
3. The DEA enforces laws and has a list of controlled substances. Delta-9-THC and delta-8-THC are on the list.
4. The USDA has rules about what hemp is.
For the purposes of 7 CFR part 990, and as defined in the 2018 Farm Bill, the term “hemp” means the plant species Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis. Delta-9 tetrahydrocannabinol, or THC, is the primary intoxicating component of cannabis. Cannabis with a THC level exceeding 0.3 percent is considered marijuana, which remains classified as a Schedule I controlled substance regulated by the Drug Enforcement Administration (DEA) under the CSA.
*Note: CBD is not part of the hemp plant- it is an isolate.
5. The FDA regulates food and drugs, neither of which Δ8-THC has been approved by the regulatory agency.
6. The Analogue Act
In general a controlled substance analogue shall, to the extent intended for human consumption, be treated, for the purposes of any Federal law, as a controlled substance in schedule I.
In determining whether a controlled substance analogue was intended for human consumption under subsection, many factors may be considered. A substance is considered a controlled substance analogue if it fulfills one (or more) of the following conditions:
(i) the chemical structure is substantially similar to the chemical structure of a controlled substance in schedule I or II
(ii) the substance has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II
(iii) a person represents or intends to the substance to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I.
delta-8-THC fulfills all three of these conditions.
So what is Δ8-THC?
Delta-8-THC is a degradation product of Δ9-THC, as are other isomers such as Δ10-THC. The double bond in the first ring structure moves, making the molecules slightly different in structure, but also slightly different in their effects on the body. All THC molecules are thought to be intoxicating, including Δ8-THC.
Armed with this information, it is up to you to decide your stance on Δ8-THC as well as the other synthesized isomers and derivatives making their way onto the market. As a consumer, it is wise to be educated and savvy on these products because currently there is no safety data or assessment on these compounds, and regulations regarding the production and testing are non-existent.
Disclaimer: I am not a chemist, lawyer, or regulatory agent. Just a concerned Cannabis researcher trying to educate consumers on products who may assume products are safe because they are being sold on the market.