Hemp Industries Association Calls for Regulation, Not Prohibition, of Delta-8 THC T

Over the past year, my colleagues and I have written extensively about the unclear legality of Delta-8-Tetrahydrocannabinol (THC). We’ve covered everything from the Drug Enforcement Administration (DEA) position on “synthetically derived THC” to the growing number of government bans. You can read more about these topics here:

Today we turn to the latest public announcement by the Hemp Industries Association (HIA) in which the nonprofit expressed its support for the controversial cannabinoid.

Photo by Christina Winter via Unsplash

The HIA statement is significant because it departs from the position of many other hemp organizations on Delta-8 THC. To date, most of the hemp advocate groups who have spoken on the subject, including the US Hemp Roundtable, have distanced themselves from Delta-8 THC, which is made by isomerization, a chemical reaction that hemp-derived CBD with a solvent, a Acid, combined. and heat. This segment of hemp players fears that the chemically manufactured substance could undo years of efforts to convince lawmakers that hemp is a safe, non-intoxicating, and versatile commodity that offers farmers, manufacturers, traders, and retailers a wide variety of commercial opportunities.

RELATED: RIP Delta-8 THC: Why States And DEA Want It Banned Ban

It is true that most of the Delta-8-THC sold in the United States is largely unregulated, easily accessible to minors, and highly sought after for its psychoactive effects. For these reasons, it’s easy to see how the controversial cannabinoid could further stigmatize and topple the entire industry before it has a chance to show the plant’s full potential.

While the HIA’s position differs from that of other hemp groups, this is not surprising given the organization’s track record in defending the interests of the hemp industry. Since 1994, HIA has launched four lawsuits, including two in the Fall of 2020, in which HIA questions the legality of the DEA’s controversial Provisional Final Ruling, which in part threatens the burgeoning Delta-8 THC industry by generally stating that “[a]All synthetically obtained tetrahydrocannabidiols remain controlled substances according to Scheme I. “This formulation is the root of the legal uncertainty surrounding delta-8-THC, and DEA still has to clarify whether it actually takes the position that the conversion of hemp-derived CBD into delta 8-THC turns the substance into a “synthetically obtained” THC.

RELATED: Demand Is Booming For Delta-8

The HIA’s position on the legality of Delta-8 THC consists of an 11-page document written by the organization’s lawyers, Rod Kight and Philip Snow, and a press release, which are briefly summarized as follows:

Photo by Jeff W via Unsplash

1. Delta-8 THC extracted from hemp is federally legal.
   1. The 2018 Farm Bill generally defines “hemp” as encompassing the entire plant and its cannabinoids and derivatives that contain no more than 0.3% total THC. Additionally, federal law specifically removes “hemp” from the definition of marijuana under the Federal Controlled Substances Act (CSA). Although most of the Delta-8-THC available in the US market is obtained through the isomerization of hemp-derived CBD, the substance is called “hemp” because it is a derivative of a hemp derivative.
   2. Although Delta-8 THC has psychoactive effects and questions remain as to whether it is a “synthetic” one, Delta-8 THC should not be treated as a controlled substance because it does not closely resemble Delta-9 THC in structure and psychoactive effects .
   3. Even though Delta-8 THC is classified as “synthetically obtained THC”, the substance is not a controlled substance as the Farm Bill 2018 defines “hemp” as including its “derivatives”, which are by definition “synthetic”.
   4. According to the legal theory of “lex specialis”, Delta-8 THC is not a controlled substance as the Farm Bill 2018 is more specific than the CSA in that it explicitly removes “hemp” from the CSA, compared to the CSA which generically refers to ” THC “. As such, the 2018 Farm Bill overrides the opposite general provisions of the CSA.
      side note: Although apparently sound, the legal arguments put forward by the HIA are purely theoretical as they have yet to be examined in court.
2. A legal framework is essential to ensure the public safety of consumers.
   1. Although more scientific study is needed, history has shown that natural cannabinoid use has been safe for thousands of years.
   2. The HIA is committed to regulating the manufacture of these products, with an emphasis on science-based consumer safety.
   3. The HIA invites industry leaders to establish high quality and testing standards and market these products through transparent and accurate labeling to build consumer confidence and expand the market.
3. The ban further exacerbates the threat to consumer safety posed by unregulated markets. The HIA urges state lawmakers to avoid ineffective bans and instead favor partnering with hemp industry experts to develop hemp policies that will safely open markets, promote innovation, stimulate investment and create jobs.

RELATED: Delta-8 Vs Delta-9: What’s the Difference?

While the HIA’s position may at first glance differ from other prominent industry organizations, it essentially advocates the same thing: safe, regulated products that provide tremendous financial opportunities for the hemp industry.

Nathalie Bougenies is a lawyer with Harris Bricken. This article was originally published on the Canna Law Blog and is republished with permission.