Delta-8: Legal + Illicit

DEA doesn’t have much room to mess with Delta-8 THC (D8). After all, Congress knew when it legalized THC in hemp that there was as much as 6 pounds of it per acre, when they expressly allowed it in the Agriculture Improvement Act (2018 Farm Bill).

The Farm Bill defined legal hemp as “the plant 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 is an isomer of THC.

Although I studied not chemistry but linguistics (marketing), I don’t consider it synthetic but rather a product of conversion, like CBDa > CBD. Besides, DEA rules are just for DEA Licensees, the rest of us are RICO felons to them. Plus, DEA can’t make new law, only Congress can and it never Scheduled any phytocannabinoid.

DEA has been permanently enjoined from enforcing the CSA on hemp since 2004 by the Ninth Circuit. If we’re ever going to disabuse the government of its irrational, unconstitutional, and anti-science stigma against THC, here’s a good place to draw a line in the sand and not acquiesce to every unconstitutional whim of every unelected bureaucrat.

While we should be united to push back against D8 prohibition, there’s money in it for associations and others who don’t have members selling it, sacrificing D8 to DEA in order to look good. It’s the same reason smokable hemp is at risk: it’s regulatory chum.

Are D8 products sometimes made in low quality? Maybe, but many other FDA approved drugs, foods, devices, and supplements are as well, and they aren’t banned nor punished. The industry can’t fix it if it’s illegal, that just drives it underground.

We need constructive engagement with the bad actors among the producers to raise quality, not give them license to cut even more corners because it is illegal anyway.

Plus Cannabis is Cannabis is Cannabis: hating on one aspect is a slippery slope to hating on many more, and we’ve had 84 years of that already. Enough is enough. Don’t be a Hempocrite.

CBD is equally “illegal” to DEA if you’re not a Licensee of it. It too has a drug code, 7350. It too is a product of conversion, CBDa > CBD.

Entrepreneurs might just consider DEA’s statements then go ahead and market D8 products anyway. Sometimes the better part of compliance is doing the thing that built the industry in the first place: ignore the law, like AirBnB, Tesla, and Uber did when they started. (Unlicensed hotel, no showroom in the state they sell cars in, unlicensed taxis).

Same with CBD in Europe: what’s to stop a company from making it in a liberal jurisdiction then shipping EU-wide, ignoring Novel Food laws? See the Kannavape case in France.

We’re missing an opportunity to draw FDA into this fight, which is where it belongs. It puts pressure on them to finally do the right thing after 51 years of the lie of Schedule 1 and “no medical value.” As long as it’s S1, their hands are tied. Lets get them untied and move it down the road.

These kind of pronouncements from the Feds are a good thing if it reduces the number of Cannabinoid Cowboys. That leaves more room for the lion-hearted.

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