Prior to the 2018 Farm Bill, hemp was classified as a Schedule I substance, just like marijuana. That bill not only decriminalized hemp containing less than .3% THC, turning it into a viable agricultural crop, but it also decriminalized all products that could be derived from hemp, meaning people could extract CBD to make salves, tinc- tures, gummies, tablets, vape cartridges and more. The bill also decriminalized hemp- derived THC products like delta-8 THC and delta-9 THC, which has created some legal loopholes that companies are exploiting to sell mislabeled and even disingenuous products.
Like CBD, hemp-derived THC can be isolated or synthesized from legal hemp containing less than .3% THC. All three molecules have purported medicinal properties and are used by people experiencing inflammation, anxiety, sleeplessness, muscle and joint pain and more. However, unlike CBD, both delta-8 and delta-9 THC have psycho- active properties.
And now, they’re all floating around in a legal gray area. They can be bought and sold in some states and online with- out risk of legal retribution or arrest. But none of the products containing those substances are regulated, controlled or monitored by the Food and Drug Administration (FDA) or any other federal agency. There are no product testing or safety standards in this market. Many ethical businesses will pay for third-party testing to prove their products are safe and contain the dosages they claim. But it is also not uncommon for some prod- ucts to contain less or none of what they claim, to have illegally isolated or synthe- sized their contents, or to contain other potentially dangerous chemicals.
That’s why some states, like Colorado, specifically prohibit products created by “chemically modifying” a natural hemp component. Delta-9 is legal here because it’s a “phytocannabinoid” occur- ring naturally in the hemp plant. But its chemically synthesized cousin delta-8 THC is not (Weed Between the Lines, “The delta-8 gray area,” July 8, 2021).
And new research published in the Journal of Cannabis Research suggests that a significant percentage of hemp- derived delta-9 THC products actually contain chemically modified THC and THC derived from traditional cannabis plants. The research team studied select- ed products marketed as containing “hemp-derived delta-9 tetrahydrocannab- inol” and had them analyzed in a lab.
“While 96.2% of products were under the legal delta-9 THC limit, 66% differed from their stated dosage by more than 10%, and although 84.9% provided a lab report to customers, 71.1% of these did not check for impurities,” the study’s abstract reads. “Additionally, 49% of products converted CBD to THC to achieve their levels, and only 15.1% per- formed age verification at checkout.”
The study’s lead author, Lee Johnson, also points out that 26.5% had sourced the THC in their product not from hemp but from traditional cannabis plants — which is still illegal according to the federal government.
The study concludes: “Only 18.4 per- cent probably used natural hemp- derived delta-9 THC.”
“[Companies] get away with it,” says Johnson. “And I’m surprised that they get away with it. It’s very brazen to do that.”
According to the FDA, delta-9 THC products are not protected under the 2018 Farm Bill and remain illegal. In a letter from 2021, Terrence Boos, chief of the DEA Drug and Chemical Evaluation Section, clarified that if THC is arrived at via a chemical starting from CBD, it “makes the [substance] synthetic and therefore, not exempted” under that bill.
However, in 2022, the Ninth Circuit Court of Appeals disagreed with that. They rejected arguments that hemp- derived THC products, even those chemically synthesized from hemp- derived CBD, fall beyond the scope of the 2018 Farm Bill.
“Regardless of the wisdom of legaliz- ing [ingestible hemp-derived] THC prod- ucts, this Court will not substitute its own policy judgment for that of Congress,” the three-judge panel wrote in its decision. “If [the defendant] is cor- rect, and Congress inadvertently creat- ed a loophole legalizing vaping products containing [hemp-derived] THC, then it is for Congress to fix its mistake.”
Johnson echoed the court’s senti- ments. “I do put the blame on the feder- al government for not thinking through the consequences of the law that they wrote,” he says. The lawmakers wrote the 2018 Farm Bill in such a general way, without specifying the legality of hemp-derived THC, or putting an age limit on who can buy these products, that they created this problem, Johnson continues.
The only solution he sees to getting the labeling correct and regulating delta- 8 and delta-9 THC products is through a law like Colorado has made. And, pref- erably, a law that comes from the feder- al government.
“The distinction between cannabis is purely theoretical. Is a plant with less than .3% THC hemp, or the plant with 23% cannabis? It’s just an arbitrary line,” he says. “So I think [the government] should really treat them the same way.”
