The Legal Loophole of Delta 8 in Utah
In December 2018, Congress passed the “Farm Bill” or the Agriculture Improvement Act, which essentially removed hemp and its derivatives from the controlled substances list. By legal definition, hemp is simply cannabis that contains less than 0.3% THC and therefore has no psychoactive effects.
Delta 8 tetrahydrocannabinol (also known as delta-8 THC) is one of the hundreds of naturally occurring cannabinoids in the cannabis plant. Even though delta-8 is not found in significant amounts in the cannabis plant, concentrated amounts of delta-8 THC are manufactured from hemp-derived cannabidiol (CBD), which is considered legal federally under the Farm Act.
However, it’s argued by some that the exact opposite is true; according to the Federal Analog Act (a section of the Controlled Substances Act), any chemical that is "substantially similar" to a controlled substance listed in CSA Schedule I or II should be treated as if it were a Schedule I drug. Therefore, even though hemp was removed from the controlled substances list, the individual cannabinoids that make up the plant (such as delta-8 or delta-9 THC) would still be considered a “controlled substance” and therefore illegal federally.
In Utah, hemp-derived delta-8 is illegal under the Utah Controlled Substances Act, which doesn’t make an exception for hemp-derived cannabinoids like some other states do. However, even though technically illegal in the state, you can still find Delta-8and other novel cannabinoids, Delta9 and HHC, in storefronts, gas stations, online and neighboring states, such as Wyoming. Moreover, two medical cannabis companies in Utah (Standard Wellness and Zion’s Medicinal) have been making delta-8 based products available for patients since the opening of dispensaries.
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While some users claim delta-8 can help with nausea, appetite, pain relief, and general mental health, others have reported feeling confusion, anxiety, numbness, a slow or rapid heart rate, and even hospitalizations. Reports such as these have led the Food and Drug Administration (FDA) to issue 5 warnings about using delta-8. Among them, the FDA points out that they have not evaluated or approved delta-8 as being safe for human consumption, that delta-8 can have serious psychoactive and intoxicating effects and that delta-8 products are often created by using potentially harmful chemicals.
Even though the Farm Bill legalized hemp and removed it from the Controlled Substance List, the individual cannabinoids that make up the plant are still considered a Schedule 1 drug and should be regulated as such. Until more is understood about the dangers of the extraction process and the effects these novel cannabinoids provide, this would be the rational approach.
In addition, Congress should clarify their intention with the 2018 Farm Bill with regards to hemp-derived cannabinoids and tighten this apparent “loophole” in the law. If left unchecked we will continue to watch as the hemp industry creates an unregulated pharmaceutical arm with the public as its unsuspecting test subjects.