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Delta-8 THC is legal in many states, but some want to ban it

Nickolas Jarosh started smoking marijuana after his shifts as a 911 dispatcher. He’d flip between working days and nights, and the inconsistent schedule made it difficult to fall asleep. Tetrahydrocannabinol, or THC, the psychoactive ingredient in marijuana, helped, he said.

Jarosh, 29, who now lives outside Houston, no longer works a job that forces him to keep inconsistent hours. He also no longer has access to marijuana, which he said had also been helping to ease his anxiety and depression.

But four months ago, he found a substitute: a federally legal form of the psychoactive compound called delta-8 THC. Now, he orders it from a company in Boston that works it into gummies, chocolates and vape cartridges.

What CBD guidelines mean for consumers

“Delta-8 makes a huge difference in being able to relax, clear my mind and get to sleep. I wake up feeling more rested,” said Jarosh, who has also tried cannabidiol, or CBD, products, which he said help a little, but not enough.

“Switching to CBD products that also have delta-8 has made a huge difference. It’s not quite as potent as delta-9, but it’s very similar,” he said.

When people talk about THC, they’re typically talking about delta-9 THC. That’s the chemical responsible for the high associated with marijuana. But it’s not the only compound found in cannabis.


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The cannabis plant contains more than 500 chemical compounds, including 100 cannabinoids, like CBD and various forms of THC.

Although some states have legalized marijuana for recreational or medicinal use, on a federal level, the plant remains listed as a Schedule I drug, a tier reserved for drugs with a high potential for abuse and no medicinal benefit, according to the Drug Enforcement Administration

However, the legality of the plant’s individual compounds, including delta-8 THC, falls into a gray area.

Thanks to a loophole in the 2018 farm bill, delta-8 THC is unregulated at the federal level. That legislation legalized hemp, which is defined as a cannabis plant that contains 0.3 percent delta-9 THC or less — levels considered too low to have a psychoactive effect. However, the bill does not address delta-8 THC levels, an omission that makes it legal for vendors to sell the compound, often as edibles, vape cartridges and tinctures, with no oversight.

But in recent months, 14 states — Alaska, Arizona, Arkansas, Colorado, Delaware, Idaho, Iowa, Kentucky, Mississippi, Montana, New York, Rhode Island, Vermont and Utah — have blocked the sale of delta-8, citing lack of research into the compound’s psychoactive effects. However, not all states see the compound as a health concern. A section that would have banned delta-8 in Texas was struck from a state bill in May, keeping delta-8 THC legal in Texas.

“We don’t know enough to be worried yet, but better to be safe than sorry,” said Daniele Piomelli, director of the University of California, Irvine, Center for the Study of Cannabis.

How is delta-8 THC different from delta-9 THC?

Both delta-8 and delta-9 THC are naturally found in cannabis, and chemically, the two compounds are very similar. All that separates them is the location of a double bond, found on the eighth carbon in delta-8 THC and the ninth carbon in delta-9.

As far as scientists know, all forms of THC bind to cannabinoid receptors in the body’s endocannabinoid system, which is what produces a high. However, due to the location of its double-bond, delta-8 binds to those receptors in a slightly different manner than delta-9 THC, making it less potent. Beyond that, scientists aren’t sure how the two compounds differ.

“No one has taken delta-8 and delta-9 and given them to healthy people and tracked the difference,” said Raphael Mechoulam, a professor of medicinal chemistry at Hebrew University of Jerusalem and the former president of the International Cannabinoid Research Society. “And even the effects of delta-9 depend greatly on the dose.”

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Does delta-8 have medical benefits?

Delta-9 is the quintessential form of THC that has been the subject of clinical trials for everything from multiple sclerosis to memory retrieval. According to Piomelli, because delta-8 and delta-9 THC have such a similar molecular structure, the two compounds would theoretically produce similar medical benefits, but there isn’t any strong data to prove that is true.

“Very few people have taken pure delta-8 and reported it. People use it for a long list of ailments, but there are very few clinical trials,” Mechoulam said.

Clinical trials are the gold standard of medical research and so far, only one very small clinical trial has been conducted on delta-8 THC. In 1995, Mechoulam and his colleagues administered the compound to eight pediatric cancer patients two hours before each chemotherapy session. Over the course of eight months, none of these patients vomited following their cancer treatment, the study found. Newer research has also tested cannabis’ ability to curb nausea in cancer patients, with promising results, however, other chemicals in the cannabis plant may be at play.

According to Mechoulam, delta-8 THC is a more stable compound than the more well-studied delta-9. This could make delta-8 THC a better candidate than delta-9 THC for new therapeutics –– if future research shows it to be medically beneficial.

Should I be cautious of delta-8 THC products?

In short, yes. There is still very little known about delta-8 THC itself and in an unregulated market, products that contain the compound can easily be cut with toxic materials consumers have no way of knowing about.

Aside from delta-9 THC, there’s much less research on individual cannabinoids than there is on the cannabis plant as a whole.

When people smoke marijuana, for example, they inhale all of the compounds found in the plant. Delta-8 THC is just one of these compounds, and scientists don’t know much about how the isolated chemical works in the body, especially in high concentrations.

According to Piomelli, one of the reasons cannabis is generally considered nontoxic is because its complex mix of compounds forms a sort of checks and balances system. Although some plants are bred to contain higher amounts of THC, “there is only so much THC a plant can make,” he said.

Just because THC comes from a plant that doesn’t kill people doesn’t mean THC alone is safe. We don’t know that until we test it.

“But if you extract pure THC — whether delta-8 or delta-9 — and put it into dabs and all the other stuff we have now, you are doing something else, and you cannot assume the toxicity of pure THC is the same as the whole plant,” Piomelli said. “Just because THC comes from a plant that doesn’t kill people doesn’t mean THC alone is safe. We don’t know that until we test it.”

And just because delta-8 THC produces milder psychoactive effects than delta-9 THC doesn’t mean it’s always less intense, Piomelli said. “To circumvent potency is easy, you just use more.”

Budding industry: How companies and regulators are meeting the rising demand for new cannabis varieties

CBD is one of more than 100 cannabinoids derived from the Cannabis sativa plant and may help treat pain, anxiety, depression and a number of other ailments. CBD has penetrated not only the pharmaceutical sector but also the cosmetics, food and beverage sectors.

However, growing demand for CBD products and the move towards legalisation of Cannabis for recreational and medicinal use in a number of US states and Canada is presenting some interesting regulatory challenges for the seed industry. The Canadian Seed Growers’ Association (CSGA) recently approached the OECD Seed Schemes to explore certification of new seed production techniques that are designed to produce Hemp varieties high in CBD.

Although these issues are presenting immediate challenges for Canada and the United States, markets for cannabis-derived products are growing globally and many of the issues discussed below will also be faced by other countries and jurisdictions in the coming years.

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The storied history of hemp in North America

Cannabis has a long history of human use. Many ancient cultures grew Cannabis for use in herbal medicines while Cannabis cultivation in America dates back to the early colonists. Hemp was first planted in Nova Scotia, Canada, in 1606 by the Parisian botanist and apothecary, Louis Herbert, and both English and French governments promoted hemp production in the 1600s because of the use of hemp fibre in naval sails and ropes. Hemp production continued in Canada until the early 20th century, when competition from lumber and synthetic textiles companies reduced its profitability.

In 1923, however, production was banned completely when Cannabis was included in the Canadian Opium and Drug Act. It was only in 1996 that experimental hemp trials revealed that hemp could be produced with much lower levels of tetrahydrocannabinol (THC), the main psychoactive compound in marijuana, and, in 1998, industrial hemp was legalized in Canada for fibre and grain, under a number of strict conditions.

Hemp was also widely grown for fibre production in the US, particularly in the upper Midwest, until shortly after World War II, when all hemp varieties became associated with marijuana and were considered a narcotic.

The recent renaissance of cannabis

In 2018, Health Canada legalized whole-plant utilization of industrial hemp, which meant that hemp could be harvested for CBD in addition to its fibre and grain. Around the same time, the US Farm Bill also legalized large-scale hemp cultivation, in addition to the sale, transport and possession of hemp products. Legalization spurred a rapid increase in the production and marketing of CBD based products.

The seed sector has been producing Cannabis sativa varieties for many years to support the production of Hemp crops for grain as well as fibre. The emerging CBD market, however, demands different Cannabis varieties than those used for fibre and grain, creating new incentives for breeders to innovate.

Many seed merchants and producers are now looking for varieties that will produce large numbers of flowers with high levels of CBD, and grow in the diverse climates and conditions of North America. Adapting foreign varieties to new growing conditions requires considerable trial and error and those trials that have started are not at a point where they have produced varieties suitable for commercial release.

Because of this lag in market release in Canada, farmers are asking CSGA for assistance in accessing high CBD hemp varieties for Canadian production. At the same time, plant breeding material from the medical and black markets are beginning to emerge, that may have important characteristics for CBD production.

Increasing interest in Cannabis seed is presenting authorities with a number of other challenges. CSGA has experienced a huge increase in applications from “hobby” breeders for recognition as an “official” breeder. But many of the hobby Cannabis breeders lack knowledge and experience of seed certification and Government agencies are struggling to educate applicants about the rules and regulations that govern the seed sector.

Although several US states have legalized marijuana for medicinal and recreational use, it remains illegal under federal law. The Drug Enforcement Agency (DEA) and most state law enforcement agencies still treat any Cannabis sativa plants or plant parts as marijuana. Seed Regulators who may be required to store seeds as part of their sampling processes are effectively handling illegal material under Federal Law.

What does all of this mean for seed certification?

The OECD Seed Schemes facilitate the movement of high quality agricultural seeds across borders by harmonising certification standards and procedures for the varietal identity and purity of seed lots. The harmonisation of rules helps to improve domestic production, develop export markets, and provides farmers, seed breeders and authorities with reassurance as new markets open up.

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The ultimate goal of the Seed Schemes is to ensure that farmers in a country can trust that the seed they are buying is of a high quality. The new Cannabis varieties present a challenge for the Seed Schemes due to the unique way that the seeds are produced and how this affects the chemical content of the resulting plants. Given the potential for the levels of psychoactive compounds such as Tetrahydrocannabidinol (THC) to vary between varieties and between generations, it is critical to ensure THC levels are safe and legal, and that farmers receive only high-quality certified seed.

Although 93 Cannabis varieties are already registered under the OECD Seed Schemes, the growing CBD market requires the cultivation of female plants that produce a large number of flowers. As a result, breeders are exploring new seed production methods including Feminized hemp seeds (FHS) and hybrid hemp varieties to produce more flowers.

Currently there are no OECD standards or procedures for certifying the production of FHS and there is some concern that plants derived from feminised seed have potentially higher THC levels. In June 2020, countries participating in the OECD Seed Schemes agreed on a new project proposal to review Hemp seed certification standards under the guidance of the Ad Hoc Working Group (AHWG) on New Seed Production Methods.

In the past, OECD has tested for specific chemicals in rapeseed as part of certification requirements. However, sampling and testing may present another unique challenge in the Cannabis sector. Because the increased interest in CBD and other products has increased the cost of Hemp seed, some feminised Hemp varieties can retail at USD 1 per seed. OECD certification requires samples to be taken for various tests and may require the collection and storage of a few thousand seeds per seed lot. As Cannabis seeds lose their viability within 1-2 years, the period in which they are required to be stored, any sampling would therefore come at a significant cost for breeders.

With markets for cannabis-derived products growing globally, ensuring that the OECD Seed Schemes incorporate new breeding techniques such as FHS in to their rules and regulations to facilitate the international trade of new Hemp varieties, will be critical for this growing industry.

Important terminology

“Cannabis”– the genus Cannabis was at one time considered to include the species indica, sativa and ruderalis, but their classification as a species or sub-species has been a source of controversy for botanists. The distinction may seem minor or irrelevant to many, but the nomenclature of plants is important for the formal recognition of varieties at the national and international level and their subsequent cultivation and trade. For example, Cannabis indica is not a registered species in the OECD Seed Schemes while Cannabis sativa sub-species indica is. Given the growing economic interest in Cannabis and CBD, ensuring the formal recognition and certification of a wide range of Cannabis varieties and their seed is critical. Recent consensus seems to have emerged that there is in fact only one species, Cannabis sativa.

“Hemp” is a term used to classify varieties of Cannabis that contain 0.3% or less of Tetrahydrocannabidinol (THC) (dry weight), the main psychoactive constituent of Cannabis. It is grown for grain and fibre production.

“Marijuana” is used to classify varieties of Cannabis that contain more than 0.3% THC (dry weight) and can induce psychotropic or euphoric effects on the user. It is grown for recreational and medicinal use.

The Cannabis plant and its uses

Flowers – Rich in cannabinoids, including CBD. Can be used for extracts and medicines.

Seeds – The seeds are the edible part of the hemp plant. They can be pressed into oil for food and other purposes, or milled for their protein.

Stalks – The fibrous part of the plant that can be spun into cloth and can also be used in manufacturing or construction.