Hemp Legally Speaking

Jonathan Miller interviews FBT attorney Nolan Jackson about the rise of delta-8 THC. What is D8, is it legal, and what kind of legal and regulatory future does it face? Jackson is one of the nation’s leading experts on state and federal hemp regulation, serving as outside counsel to the US Hemp Roundtable.

If you have questions about the episode or ideas for Hemp related topics, email us at hemplegallyspeaking@fbtlaw.com.

Show Notes

Delta-8 Episode Resources:

Host: Jonathan Miller
Guest: Nolan Jackson
Blog: Hemp Legally Speaking

Hemp industry questions covered in this episode:
  1. What is delta-8?  How do you manufacture it?
  2. What’s the difference between delta-8 and delta-9?
  3. Make the argument that delta-8 is LEGAL federally.
  4. Make the argument that delta-8 is ILLEGAL federally.
  5. Putting aside the letter of the law, what is the spirit of the law, i.e. what were Congress’ intentions?
  6. What has the DEA said about delta-8?
  7. What is the US Hemp Roundtable’s position on delta-8? 
  8. What is the US Hemp Authority’s position?
  9. What is the HIA’s position?
  10. What is the position of leading cannabis organizations?
  11. Have any states passed laws banning or regulating delta-8?
  12. Have any states promulgated regulations on the issue?
  13. In gray area states, are there agency officials who have made declarations about delta-8?
  14. Let’s discuss Kentucky – KDA statement, local enforcement actions, KHA threats.
  15. What are your predictions on future legal and regulatory treatment of delta-8? 
If you have questions about the episode or ideas for Hemp related topics, email us at hemplegallyspeaking@fbtlaw.com

What is Hemp Legally Speaking?

With hemp being legalized only recently, legal and regulatory regimes concerning the crop and its products such as CBD are continually evolving. Jonathan Miller, who helped craft much of federal and state hemp laws in his role as General Counsel of the US Hemp Roundtable, hosts a biweekly podcast in which he engages in 15-20 minute discussions of cutting-edge legal issues facing the industry. Jonathan speaks on each program with subject matter experts from Frost Brown Todd’s nationally leading hemp practice group.

If you have questions or ideas for Hemp related topics, email us at hemplegallyspeaking@fbtlaw.com.

This podcast was created for general informational purposes only as of the time of its creation and does not constitute legal advice, the formation of an attorney client relationship, or a solicitation to provide legal services.

The laws governing legal advertising in some states require the following statements in any publication of this kind:


Welcome to Hemp Legally Speaking, I'm Jonathan Miller. I'm the chair of Frost Brown Todd's Hemp Practice Group. And welcome to the first of what we hope to be a long series of podcasts where we share our perspectives on the evolving laws and regulations of hemp and hemp products like CBD.

We at Frost Brown Todd not only have a very broad and diverse practice when it comes to hemp issues covering a whole realm of the types of issues that come up for our clients. But we also are deeply involved in the development of the laws and regulations that we are asked to opine on.

As general counsel for the U.S. Hemp Roundtable, I've been one of the leading advocates for hemp legalization since about 2012 and continue to this day to work to try to develop a legal framework that will be both fair and effective when it comes to hemp and have products.

We're going to talk about one of one, a cannabis product today that has been much in the news lately, and that is Delta 8. And joining me today is my colleague, Nolan Jackson. Nolan, at quite a young age, has emerged as a real national leader when it comes to hemp law.

He's become someone who is trusted for advice on a wide variety of issues and also has been deeply involved in the development of many important laws and regulations, particularly on the state level. Nolan, welcome to Hemp, Legally Speaking.

Thanks, Jonathan. It's good to be here. And I understand I'm the inaugural guest, which is quite a privilege.

Well, we're excited to have you. Well, let's talk about something I know you've been working on for both our clients, as well as for the industry as a whole with the U.S. Hemp Roundtable. And that's the issue Delta 8.

Delta 8 has become the leading news item when it comes to hemp and cannabis. And so but there's still a lot of confusion as to what exactly is Delta. So could you kind of give an overview of what Delta 8 is and how you go about manufacturing it?

Yeah, Jonathan, you're exactly right. Delta 8 is an emerging issue in the industry, and it is the number one topic of confusion and concern throughout the cannabis hemp industry. So I'm glad we're spending time on that topic today.

Delta 8 is one of approximately 100 cannabinoids that are naturally occurring in the cannabis plant, much like CBD or Delta 9, THC. It's manufactured in a couple of ways, or I should say there a couple of ways to get Delta 8.

Like I said, Delta is naturally occurring, so you can extract it just like you can any other naturally occurring cannabinoid from the cannabis plant. But that process is pretty inefficient. And when Delta 8 is naturally occurring in the cannabis plant, it only exists in pretty low concentrations.

So for that reason, most of the Delta 8 on the market today is generated in another way, and that's through chemical conversion. The process involves extracting other cannabinoids from the plant and converting them like CBD, for example, into Delta 8.

And that's most of what we're seeing on the market today.

So we were familiar with for a while when we talked about THC, Tetrahydrocannabinol, we talked about Delta 9. And in fact, the federal farm bill specifically mentions Delta 9. What is the difference between Delta 8 and Delta 9?

Yeah, so it's important to remember some similarities. First, Delta 8 and Delta 9 are both cannabinoids that are naturally occurring in the cannabis plant. They're both THC compounds, but they're importantly different as well. Their chemical structures are different.

The Delta 8 and the Delta 9 in those two compounds refers to differences in the Delta compounds of those products. That basically relates to where the Delta is in the carbon structure of those products and where the double bonding occurs.

So there are different scientifically in that way. But there's also a practical difference. It's commonly believed that Delta 8 is an intoxicating product. And again, that's a lot of what we're seeing on the market today. That's why there's so much interest in this issue.

Delta 9, on the other hand, is not intoxicating, at least not. In the amounts that are required for a product or a material to be under the 2018 farm bill.

So let's get to let's get to this underlying issue about the legality of Delta 8. And it really is right now a real gray area that a lot of companies are operating under. I want to take you back to law school and I'm going to want you to argue both sides of the issue here.

So let's start off make the case that Delta 8 is legal federally, that it is OK to be selling Delta 8 products currently under federal law.

And that argument is pretty straightforward. The 2018 farm bill is clear. Hemp is defined to include all of its derivatives extracts, isomers, cannabinoids. Delta is one of those. So under the 2018 farm bill, it's pretty clear it could be argued that it's pretty clear that Delta 8 is hemp for purposes of federal law.

It's also important to remember that hemp is removed from the Federal Controlled Substances Act as our THC in hemp. And these are plural in the federal law. It's not limited to Delta 9, THC or any other kind of THC.

And arguably it could include Delta 8. THC hemp and hemp products are also protected in interstate commerce as a matter of federal law. So when you couple all of those permissions and privileges together, it's pretty easy to make the case that Delta 8 is legal as a matter of federal law, in particular under the 2018 farm bill.
All right. Now it's time for you to completely rebut what you just said. Now make the argument that some are making that actually Delta 8 is illegal under federal law.

And so a couple of pieces or components to this argument. The first being, like I said, most of the Delta 8 THC products that we're seeing on the market today are not Delta that is naturally occurring in the plant.

In other words, that cannabinoid is not being directly extracted and then put into products on the market. Rather, it's some other cannabinoid that's been chemically converted into Delta 8. And for that reason, there's a chemical conversion or process involved.

And people argue and I would argue in this case, that Delta 8 is a synthetic THC or a synthetic cannabinoid. Those are illegal under federal law. They continue to be controlled under the Federal Controlled Substances Act. And that's the primary component of this argument in terms of illegality.

There are other pieces as well. The Federal Controlled Substances Act also treats analogs of controlled substances as controlled substances themselves. Analog is something that has a similar chemical structure to a controlled substance. Delta 8 has a similar structure to intoxicating THC and is intoxicating itself. It could be considered an analog of the controlled substance in that way.

All right. So what exactly on this whole issue of synthetic and analog, what has the Drug Enforcement Administration, the DEA, what have they said about DEA to this point?

Yeah, I haven't seen the DEA say anything specifically about Delta 8, and that's important to remember. What the DEA has done is issue an interim final rule that occurred in August of last year, almost a year ago, that touches on synthetic THC.

And in the DEA, these interim final rule, this statement is made that synthetic THC, these are controlled substances as a matter of federal law and the presence of Delta 9 THC in those products or substances is immaterial. In other words, if a product or material would be hemp by all other accounts, but contains a synthetic THC, it is not hemp, it is not federally protected as hemp, but rather is a controlled substance in the eyes of the DEA.

Right. All right. So let's we were talking about the letter of the law here and what an agency has said. When we talk about we talk about the letter of the law. We also talk about the spirit of the law.

What did Congress really intend? What are your thoughts about what Congress's intentions when it came to Delta?

Yeah. So, again, an important reminder here. Hemp is defined under the 2018 farm bill, primarily based on its Delta 9 THC concentration on a dry-weight basis. That language comes directly from the 2018 farm bill. Congress arrived at zero point three percent, Delta 9, THC on a dry-weight basis.

The belief is that Congress arrived at that amount because that's what Congress believed a non-intoxicating amount of Delta 9 THC was or is. Maybe Congress was wrong about that. We can debate that. It's probably a topic for another podcast, but that's where Congress landed, that's what federal law says.
So in my opinion, the spirit of the 2018 farm bill is related to non-intoxicating hemp and hemp products. We know that Delta 8 is intoxicating. So it could be argued that Delta 8 violates the spirit of the 2018 farm bill because it is intoxicating. In the 2018 farm bill only protects non-intoxicating types of hemp or hemp products.

Yeah, I can emphasize as a person who spent the better part of six years trying to get to what ultimately became the 2018 Farm Bill language, it was very clear that there the folks that put this over the top, who made it possible for him to be legal are the same kinds of people who oppose intoxicating products.

So there were always folks on the left and also on the far right, libertarians who supported marijuana legalization and have for quite some time. But it was really kind of a group of centrist Democrats and conservative Republicans who recognize the agricultural benefits of this crop and who felt that and understood there was now ways to distinguish between intoxicating products and not intoxicating products. So when they developed this language, their thought was, we are going to treat hemp as a non-intoxicating product and came up with the formula of point three percent Delta 9 on a dry-weight basis.

That was the standard for the time. But I can tell you the words Delta 8 never came up in those discussions. And I imagine there were a lot of members of Congress right now who were involved in that, saying, you know, what the heck is going on?

And really worried that this is a loophole being used to bring in intoxicating products against their intention. So so a number of trade associations have started to take positions on this. And let's kind of review those.

You do a lot of work for the U.S. Hemp Roundtable, as do I. What's the roundtable's position on Delta 8?

Yeah, I'm proud to say the roundtable has really been a leader on this topic. And it came out earlier this year with a strong stance on undealt 8. The roundtable's position is that intoxicating products should not be marketed to consumers under the guise of non-intoxicating hemp.

It's pretty common-sensical and pretty straightforward. The roundtable would prefer to see a regulatory framework for Delta 8, but believes strongly that Delta 8 should be regulated within the framework of adult-use, cannabis, and adult use of marijuana, cannabis in particular.

So that's the statement of the roundtable that's been it's firm position for a number of months now as this issue continues to emerge.

Yeah, and it's important to note that this is not about prohibition. The roundtable does not fear is not for prohibiting marijuana. It's not for prohibiting the 8. However, its position is that the 8 is not hemp. And and so it should not be treated like a dietary supplement or a food beverage additive, but rather should be treated in the intoxicating lane. So the roundtable sister organization, the U.S. Authority, it's the S.R.O. State, a self-regulation organization that is focused on high standards, best practices, and self-regulation for the industry. They've taken a position as well.

What is that?

Yeah, it's similar to the roundtable. And I think it's important for our listeners to know that the US Hemp Authority is focused on consumer confidence and consumer safety. And for that reason, given all of the questions about the safety and efficacy of Delta 8 and some of the misleading claims out there in the market, the authority is not going to certify Delta a product under its self-regulatory standards. So you're not going to see a U.S. hemp authority seal on a Delta 8, a product in the marketplace.

Right. So the Hemp Industries Association, which is the oldest and most enduring hemp organization, has been around for more than two decades, has taken a different spin on this. What does this say about Delta 8?

Yeah, its position is a bit more nuanced. I have not seen, for example, the CIA suggests particular regulations or protocols that it would like to see implemented, but it is in favor in general of some kind of regulatory framework.

Unlike the U.S. Hemp Roundtable, it hasn't offered, for example, an adult-use cannabis framework. It's also not opposed to a general prohibition or ban against Altaic. And in fact, its statement says that Delta 8 can be safe on its own, but the is more focused on contaminants and other materials that could mislead consumers in Delta 8 products.

I think those are the regulations and kinds of targets it has been.

Yeah, and some of the coverage of this has been a little sloppy. Kind of implying that the roundtable is against the G8 and the IEA is 48. But as you as you note, both organizations believe that it should be regulated.

Both want to keep it out of the hands of of of kids. And neither organization wants to issue a prohibition or a ban. I think where you find maybe the nuance here is that and the HRA hasn't really piece this out, but I do know that some of the leadership, the IEA believes that it feels it still should be treated like hemp, where the roundtable does not believe that.

So it's an issue about the definition of what is hemp. And so the roundtable's position is hemp is not intoxicating cannabis. The position of some and perhaps the HRA is we are just going to focus on the point three percent THC on a dry-weight basis.

Delta 9, excuse me. And so if Delta 8 does not fall into that, then it continues to be hemp. But this is the debate over what hemp is. And as you mentioned, there's a discussion about moving that point three-to-one percent, THC, whether it's Delta 9 or total THC.

So really, I think over the next few years, we're going to see a lot of discussion of what exactly is hemp. And this is really a starting point. So the marijuana industry, the cannabis organizations that don't use cannabis organizations have also come out pretty strongly on this issue.

What is their position?

Yeah. My impression is that the cannabis industry feels a bit threatened by Delta 8 and they see Delta 8 products as somewhat of a black market product. It's entirely unregulated and is encroaching on cannabis and adult-use cannabis products that have to go through pretty strict regulatory protocols.

So to the industry at large, is in favor of some kind of regulatory framework that would get these misleading products off the market and out of consumers' hands. It's got a focus on safety and bypassing regulatory protocols.

So that's where the cannabis industry is generally at this point.

Yeah, you know, there there are differences in different cannabis organizations, but I think for the leading ones, the most responsible ones are focused on safety of the products and understand that cannabis needs to. Don't use cannabis should be only used by adults and regulated extensively.

And I think they're troubled to see that competitive, intoxicating products are being sold at gas stations and natural food stores without that same kind of regulatory overreach and potentially to kids as well.

Right. So we've talked a lot about the federal government. Let's talk about the states. A lot of activity this year, discussion. Have any states passed laws that have banned or regulated they'll date?

Yeah, there has been a lot of activity at the state level this year in particular. And that's not all that surprising as this issue continues to be top of mind as states are stepping in to address it. There was a bill in Texas this year that would have banned Delta 8 products outright.

That language was removed. But I would expect to see a similar effort in years to come. We've seen a couple of states actually pass similar bills. Got my cheat sheet here, Jonathan, because of all of the activity that's been so recent, tough to keep up.

But North Dakota, they enacted a law that prohibits the sale of products with a samurai's, dealt a summarization. Is that the chemical process that's used to convert CBD into Delta 8. So there's a ban in that state, Oregon, and Michigan.

Have their legislatures have enacted bills as recently as the last few days that would treat Delta 8 as a marijuana-type product and regulate it within the adult-use cannabis frameworks in those states. Now, the governors of those states are considering signing those bills, and I would expect both to become law.

I think Governor Whitman in Michigan just got her state's bill on her desk as recently as yesterday. So, yeah, there's been a ton of activity at the state level. I'm encouraged to see that those states are addressing the topic the way the roundtable would have them address it, and that is to regulate dealt within the framework of adult-use cannabis.

So how about regulations? You mentioned laws, but a lot of state legislatures have been out since this whole debate controversy came up. Have any recent regulations on this front?

We have. New York, as a recent example, has proposed some rules in the vein of synthetic cannabinoids. They would prohibit hemp production of products that contain synthetic cannabinoids in the definition, specifically includes Delta 8, as well as Delta 10.

So that's an example of a state that's taken a regulatory approach. We're. Waiting to see position statements, policy guidance from regulators and other states that aren't quite formal rulemaking yet, and I'm sure you'll want to talk about that as well.

Yeah, so it sure that we've had a couple of state agency officials come up and opine about the legality of hemp in their states that they share a few of those.

Yeah. Regulators in Nevada, for example, issued a policy statement that any product with more than zero point three percent total THC is cannabis needs to be treated as cannabis under that state's regulatory framework. Vermont has taken a similar position.

It's actually issued guidance that the production of Delta 8 and synthetic cannabinoids is illegal under Vermont law. Again, that's not a law or a rulemaking, but it is policy guidance that we're watching. Washington is another example where regulators have issued a policy statement that temporarily bans Delta 8 in artificial cannabinoids.

And that's really because Washington is engaged in formal rulemaking at this time. So we're looking to see what kind of rule gets promulgated there. North Carolina is an example of a state that's been somewhat noncommittal. They've got guidance on their website about synthetic cannabinoids and basically that states deferring to what the DEA interim final rule says their guidance is essentially the DEA thinks this is illegal. So that's guidance to watch out for.

So you're sitting in Lexington, Kentucky. The commissioner of agriculture, Ryan Corales, has been quite vocal on this issue. What is the Kentucky Department of agriculture said and what's actually happening here in Kentucky?

Yeah, KTAR issued a pretty strong statement earlier this year, and it did so in training materials that were circulated to all hemp program participants here in Kentucky, as well as a general form email to all hemp licensees in Kentucky.

The KDA's stance is that Delta 8 remains federally illegal. And it's not to be manufactured or sold here in the state of Kentucky.

And so we've heard about some law enforcement actions taken and potential threats. What do you see as is happening here in Kentucky based on that policy?

Yeah, we've seen threats from law enforcement and actual law enforcement action as well. In fact, I just checked Facebook before our podcast, and the Casey County Sheriff's Office has posted a Facebook post about a seizure in Casey County.

Five stores were raided there and hundreds of products were seized, totaling, I think, about 8 thousand dollars. So we're starting to see the KDA's policy guidance being acted upon by law enforcement.

And same thing happened in Georgia, actually a little bit more dramatic. We've heard about arrests being made of folks selling D8 in Georgia, stores that do you see that happening more across the country as the weeks go on?

Yeah, I just learned about a Georgia action this week. Hundreds, if not thousands of products down there were seized in two store employees have been charged criminally. So we're following that matter. There were seizures and raids earlier this year in South Carolina and Wisconsin.

So it's something to monitor. It's troubling, particularly where states' laws or regulations are ambiguous and where it can be argued that Delta 8 is legal. So those are things to watch out for.

All right. So we're not given legal advice here. This is a podcast. But if in general, if a client comes to you and says, should I get into this Delta 8 business now, it's quite profitable. What are your predictions about the future of the legal and regulatory treatment of Delta 8?

Yeah, I would expect to see more of what we're starting to see at the state level. I think it's highly likely that states will start regulating Delta 8 specifically, not just as an artificial cannabinoid or synthetic THC, but as a standalone product.

We're starting to see that more and more. We saw a lot of that type of activity legislatively here in 2021. So it's not going to surprise me at all if states start taking firmer positions on Delta 8. I think we're likely to see it happen in a couple of different forms, either outright bans or outright permissions, which is probably unlikely. Maybe a third option is some kind of regulatory framework akin to what the roundtable is recommending, either putting Delta 8 products within the framework of adult-use cannabis or some similar type framework for hemp extracts and CBD products.

So it's not going to surprise me to see more of what we're seeing.

Well, great. Well, thank you. Nolan Jackson. Again, one of the leading minds when it comes to law and policy in the country. You can reach Nolan at his email, which is njackson@fbtlaw.com, and you can always reach me at my email, which is jmiller@fbtlaw.com.

And stay tuned for many more of these podcasts as we explore hemp, legally speaking, and help you try to figure out the future and the current status of the industry. Coming from folks who are not only advising clients but helping develop the laws and policies they're selling themselves.

So thanks for joining me, Nolan.

Thanks, Jonathan. Good to be with you.

If you have questions or ideas for Hemp related topics, email us at hemplegallyspeaking@fbtlaw.com.

This podcast was created for general informational purposes only as of the time of its creation and does not constitute legal advice, the formation of an attorney client relationship, or a solicitation to provide legal services.

The laws governing legal advertising in some states require the following statements in any publication of this kind: