Has New York Really Banned Delta-8 THC?

Just weeks after legalizing adult cannabis, New York has joined a growing number of states seeking restrictions or bans on delta-8-THC, the intoxicating cannabinoid synthesized from hemp.

New York officials will ban state production of Delta-8 THC products made from hemp. In addition, it becomes sketchy.

In late May, the New York State Department of Health revised its regulations on the processing and retail sale of so-called “cannabinoid hemp”. The proposed changes have yet to be publicly commented on, but are expected to take effect later this summer or fall.

This update prohibits New York-based hemp processors from “using synthetic cannabinoids or 8-tetrahydrocannabinol or Δ10-tetrahydrocannabinol made by isomerization in the extraction or manufacture of cannabinoid hemp products.” The revised regulations also prohibit “the use of Δ8-tetrahydrocannabinol, which is isomerized in the processing of cannabinoid hemp products”.

While the new regulations are apparently intended to clarify New York State’s stance on Delta-8, many questions remain unanswered.

It is unclear whether the proposed new regulations actually ban Delta-8 products, as some media reports suggest, or whether they (as some lawyers argue) simply mark out a new and still opaque jurisdiction that is subject to further refinement by state officials.

New York strictly regulates products made from hemp

New York has some of the strictest regulations in any state for cannabinoids made from hemp, including cannabidiol (CBD).

Last October, Governor Andrew Cuomo launched a government cannabinoid hemp program to regulate the production and sale of hemp and hemp extract and “help protect both consumers and farmers”.

The proposed new rules on Delta-8 will be available for public comment until July 19. “After this time, the department will review all comments and, if no further changes are required, adopt the regulations as written with Delta 8 generated by isomerization will take effect immediately,” said Jill Montag, a spokeswoman for the state health department New York, in an email recently sent to Syracuse.com.

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Officials want a clear line

Some cannabis industry observers have questioned the timing of New York’s Delta-8 regulations, especially given the state has only just legalized cannabis.

According to David Feldman, A partner in Hiller PC law firm in New York, who is also CEO and co-founder of cannabis consultancy Skip Intro Advisors, appears to be about regulatory scrutiny.

“Since D-8 is made from hemp, defenders argue that its low THC content makes it ‘legal’ under the 2018 Farm Bill,” Feldman said in an email to Leafly. “But the state wants all psychoactive cannabis products to be regulated as such, while regulation of hemp focuses on non-psychoactive abilities. D-8 is psychoactive, albeit significantly less than [the] typical delta-9 THC that we normally see. And there are strong legal arguments that D-8 is indeed illegal under the Controlled Substances Act, even under the Agriculture Act (though this is far from clear). “

But some aspects remain in the dark

Feldman added that while the current “legal obscurity” surrounding Delta-8 makes immediate law enforcement crackdown on manufacturers and retailers unlikely, there are some worrying signs for the Delta-8 industry in New York.

At least one of Feldman’s customers, he said, has been “ordered by the state to close while others continue to try to sell what they have until they receive a notice from the state”.

Feldman said his firm was advising its New York customers “that the state is now seeing”. [delta-8] considered illegal and they should stop selling it. The concern is that CBD sellers have found a huge market for D-8 products in a very short space of time, and by the time they stopped those sales some have already seen the need to cease operations entirely or consider moving into one “Legal” status to pass. “

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New York has long been an east coast cannabis hub. A survey published a few years ago by the German PR and communications company ABCD found that the Big Apple leads the world’s most important cities when it comes to cannabis consumption.

“I never signed up for D-8. It was too new and isolating the system is a bit difficult. “

Vladimir Bautista, co-founder of Happy Munkey

Vladimir Bautista, co-founder of Happy Munkey, a cannabis lifestyle and advocacy brand based in New York City, told Leafly that Delta-8 has been on his radar for several years.

“I’m not 100 percent familiar with Delta-8, but a lot of people have been pushing to sign up,” he told Leafly. “I never signed up: it was too new and isolating the system is a bit difficult. We really don’t know the long-term implications, and we don’t know if it will be legal for long. “

Bautista expects the government crackdown on Delta-8, combined with the emergence of legal adult sales, will push many New Yorkers to return to traditional cannabis, or CBD. These cannabis users, he added, “are trying to avoid as many headaches as possible with the legal market. People can [now] have three ounces or five pounds in their homes and home grown so people don’t need a headache anymore. “

Confusing language in the new rule

For those directly involved in the production and sales of Delta-8 in New York, the state’s updated regulations come as no complete surprise.

“It’s nothing new; There’s always someone out there wanting to prohibit or legalize or change something, ”said Kylie Halperin, CEO and co-founder of Pennsylvania-based DD8, a wellness company that works with cannabis growers in the United States. DD8 sells Delta-8 products all along the East Coast and elsewhere in the United States

“We saw it with CBD,” Halperin told Leafly, “with Delta-8 it’s the same now.”

‘Doesn’t prohibit Delta-8’, just its creation

Halperin also emphasized her belief that what is happening to Delta-8 in New York is not a ban on owning or selling Delta-8 products. The language in the new regulations is terribly confusing “because it relates specifically to the manufacturing / extraction process”.

Mary Bielaska, an attorney and cannabis management consultant who works with Halperin, actually believes that New York regulations are interpretable.

“The way I read the legislation,” she told Leafly, “doesn’t prohibit Delta-8. It prohibits the conversion of delta-9 to delta-8. And it requires someone to be sure that the product that the manufacturing process begins with is a hemp product. “

Intentionally vague?

Bielaska said she believes New York regulators have paid close attention to the Delta-8 controversy. “I think someone did their homework,” she remarked. “Whoever drafted this law, I think they drafted it very deliberately. You are concerned about the safety of Delta-8 products for a number of reasons. “

The main task of the regulatory update, according to Bielaska, is that the state wants to ensure that every Delta-8 extraction is done via a natural process and without harmful contaminants.

“But there is a certain gray area in this law and I think that’s intentionally vague,” she said. “You have reserved the opportunity to make further statements. They explicitly stated that the department can introduce additional limits as soon as they are more certain about this topic. “

Bielaska said the Delta-8 regulation revisions clearly showed that state officials are scrutinizing the local Delta-8 industry.

“I don’t think the New York State Health Department will be tolerant of anyone who openly foils the new [adult-use cannabis] Laws, “she said,” and I think they will be completely intolerant of anyone who produces without checking what their extractor is doing, how they make the product, and what comes out in the end. “

Bruce Kennedy

Bruce Kennedy is an award-winning reporter, editor, and producer based in Colorado. He has covered the legal cannabis industry since 2010.

View article by Bruce Kennedy

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