Will California Ban Delta-8 THC?

For a state that pioneered medical cannabis and used recreational cannabis relatively early (cannabis is only defined as marijuana and not as hemp), California is one of the worst states in the Union when it comes to sensible hemp-based CBD policies goes. So it shouldn’t come as a surprise to anyone that in the legislation to “legalize” CBD (AB-45 and SB-235) the state is now coming for Delta-8 THC.

Before I explain what the fate of Delta-8 could be, I’ll briefly give CliffsNotes on how badly California has handled CBD:

• 2018: The California Department of Health (CDPH) published a FAQ on its website in July 2018, in which it took the view that CBD intake was illegal (read my analysis of this FAQ here). In the next few years (according to a legal analysis that accompanied AB-45, CDPH issued 13 violations, 7 voluntary condemnation and annihilation letters, and 9 embargoes – all without ever creating any real regulation! Local public health departments were also involved in enforcement active.
• 2019: California tried to pass AB-228 that would have legalized CBD.
• 2020: California tried not to pass AB-2827 and AB-2028, both of which aimed to legalize CBD.
• 2021: AB-45 and SB-235 make their way through the California Assembly and Senate respectively. I’ve summarized these bills here and here.

Photo by Christina Winter via Unsplash

The second of these links, just above, details the provisions in these draft laws that are designed to ban any type of smokable hemp product. I think these bills are long shots. This is due in part to the bans on smokable hemp, which are facing massive backlash from industry and severely restricting the market for state-grown hemp, and in part to general political reasons and opposition from the cannabis industry and elsewhere.

But there’s another feature of these two calculations that doesn’t seem to have been analyzed much, and that’s delta-8 (and delta-10) tetrahydrocannabinol. If passed in its current form, it could mean the end of Delta-8 in another jurisdiction.

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

Many people don’t understand the difference between the different forms of THC, so I’ll give you a brief summary. Delta-9 THC is the main intoxicating cannabinoid in marijuana (again called cannabis in California, although “cannabis” technically includes hemp). Delta-8 and Delta-10 are also cannabinoids found in marijuana and hemp, but are generally naturally expressed in very small amounts.

Delta-8 has been specifically developing across the country recently. Like Delta-9, it’s exhilarating, albeit to a lesser extent. Since it is not normally found in large quantities in cannabis, it is usually obtained by converting hemp CBD through chemical processes. This means that there is a large market in California for hemp biomass for use in making Delta-8.

Photo by Jeff W via Unsplash

Problematically, the proposed bills would define “THC” as encompassing delta-8, -9 and -10. And problematically, manufacturers of hemp products have to certify that the raw extract they use does not contain more than 0.3% THC. While there is definitely some ambiguity here, it will likely be resolved in the final draft or by regulation. We believe the effect will likely be that hemp products cannot contain more than 0.3% of any type of THC, including Delta-8. This makes the market for such products very small or nonexistent.

RELATED: California’s Absurd Attitude to CBD Cosmetics

An even bigger challenge based on this new definition is that it modifies the standard for total THC testing to include all forms of THC. In summary, the state and federal governments are ordering tests to determine if hemp contains 0.3% or more THC by looking at THC plus converted THC acid (THCA), which converts when exposed to heat. There are several ways to do this, but the end result is that hemp containing 0.29% THC, for example, could exceed the legal threshold if a certain amount of THCA is present. Now that THC is defined to include all forms of THC, the test may be even more difficult to pass (although delta-8 and -10 are usually expressed in very, very small amounts).

As I said above, I think these bills are lengthy. But it will be interesting to see if they persist in their current form and how state and local regulators decide to deal with the situation. Check out the Canna Law Blog for more updates.

Griffen Thorne is an attorney with Harris Bricken, a law firm with attorneys in Seattle, Portland, Los Angeles, San Francisco, Barcelona, ​​and Beijing. This story was originally published on the Canna Law Blog and was republished with permission.