Delta 8, Delta-10, HHC, THCO… A Pandora’s Box of Unregulated Cannabinoids
Cannabis industry trade group declares nationwide sale of hemp-derived intoxicants a “public health disaster.”
The legalization of hemp-derived cannabinoids by the 2018 Farm Bill has created a yawning regulatory gap that is being avidly exploited by purveyors of sketchy vape products and high-potency edibles.
That’s the contention of a “white paper” report recently issued by the California Cannabis Industry Association (CCIA), a leading cannabis industry trade organization, which warned that the poorly written law inadvertently opened a “Pandora’s box” of unregulated intoxicating compounds that threaten public health. At issue are psychoactive cannabinoids other than cannabis-derived Delta-9 THC.
It was legalizing cannabidiol (CBD), a non-intoxicating compound with many salubrious properties, that lawmakers had in mind when they crafted the Farm Bill. But other intoxicating cannabinoids ostensibly derived from hemp — including Delta-8 THC and several potent synthetic THC analogs that don’t exist in nature — are being openly sold coast to coast without regulatory oversight, according to the white paper, which was written by CCIA vice president Tiffany Devitt.
Entitled “Pandora’s Box: The Dangers of a National, Unregulated, Hemp-Derived Intoxicating Cannabinoid Market,” it states: “Rife with contaminants and chemical byproducts, many of these so-called hemp THC and THC-like products are sold online and in convenience stores, gas stations, and smoke shops without age-gates, testing standards, packaging and labeling requirements, marketing limitations, or even a proper understanding of their potential effects on consumers. It’s a public health disaster.”
DID THE NINTH CIRCUIT GET IT WRONG — OR DID CONGRESS?
Devitt warns that the loopholes in the 2018 Farm Bill were legitimized by a recent ruling of the US Ninth Circuit Court of Appeals in San Francisco, which has “unleashed a Wild West of intoxicants.”
On May 19, 2022, a three-judge panel of the Ninth Circuit rejected arguments that Delta-8 products that are chemically synthesized from hemp-derived CBD fall outside the scope of the Farm Bill. In AK Futures LLC v. Boyd St. Distro, LLC, the panel upheld a Southern California district court’s grant of a preliminary injunction in favor of AK Futures, a producer of vaping products, in a trademark infringement action against rival Boyd Street Distro. The Ninth Circuit rejected Boyd’s contention that AK Futures could not hold a valid trademark for its products because federal law forbids possession and sale of Delta-8 THC.
Stated the decision: “Regardless of the wisdom of legalizing delta-8 THC products, this Court will not substitute its own policy judgment for that of Congress. If Boyd Street is correct, and Congress inadvertently created a loophole legalizing vaping products containing delta-8 THC, then it is for Congress to fix its mistake.”
The decision added: “[T]he source of the product — not the method of manufacture — is the dispositive factor for ascertaining whether a product is synthetic.”
The Ninth Circuit also found that “the only statutory metric for distinguishing controlled marijuana from legal hemp is the delta-9 THC concentration level.” That’s a reference to the 0.3% Delta-9 THC standard established as a maximum for legal hemp under the Farm Bill.
In her white paper, Devitt suggests that the Ninth Circuit erred, stating that the ruling is “at odds with other federal statutes such as the Federal Analogue Act, which explicitly prohibits THC analogs. Approval of novel cannabinoids … rightfully falls under the purview of the US Food and Drug Administration.”
Devitt agrees with the Ninth Circuit panel that further Congressional action is mandated. She writes: “All plants grown for cannabinoid content should be subject to a similar set of regulations rather than an arbitrary, unworkable THC threshold. Absent a single federally regulated cannabinoid market that oversees both hemp and cannabis, the 2018 Farm Bill urgently needs to be amended to close the loophole allowing the unregulated sale of concentrated, intoxicating, and/or synthesized cannabinoids.”
Devitt adds: “The ultimate solution is a single, federally regulatory framework that oversees both hemp- and cannabis-derived cannabinoid products for human consumption.”
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