The New York Times
This drug gets you high and is legal (maybe) across the country
Texas has one of the most restrictive medical marijuana laws in the country, with sales permitted only by prescription for a handful of illnesses. That did not stop Lukas Gilkey, chief executive of Austin-based Hometown Hero CBD. His company sells joints, dullness, gummy bears, vaporization devices and dyes that offer a recreational feel. In fact, businesses are growing online too, where he sells to many people in other states with strict marijuana laws. But Gilkey said he is not an outlaw and is not selling marijuana, just a close relative. He is offering products with a chemical compound – Delta-8-THC – extracted from hemp. It is just a little chemically different from Delta 9, which is the main psychoactive ingredient in marijuana. Subscribe to the New York Times newsletter The Morning. And that small distinction, it seems, can make a big difference in the eyes of the law. According to federal law, psychoactive Delta 9 is explicitly prohibited. But hemp Delta-8-THC is not, a loophole that some business owners say allows them to sell it in many states where hemp ownership is legal. The number of customers “entering Delta 8 is impressive,” said Gilkey. “You have a drug that essentially gets you high, but it’s totally legal,” he added. “The whole thing is comical.” The rise of Delta 8 is a case study of how industrious cannabis entrepreneurs are separating hemp and cannabis to create a myriad of new product lines with different marketing angles. They are building brands from a variety of potencies, flavors and strains of THC, the intoxicating substance of cannabis, and CBD, the non-toxic compound that is often sold as a health product. With Delta 8, entrepreneurs also believe they have found a way to take advantage of the country’s fragmented and complicated laws on recreational marijuana use. It is not that simple. Federal agencies, including the Drug Enforcement Administration, are still considering their options for enforcement and regulation. “Dealing with Delta-8-THC in any way is not without significant legal risks,” said Alex Buscher, a Colorado lawyer specializing in cannabis legislation. Still, experts in the cannabis industry said Delta 8 sales did explode. Delta 8 is “the fastest growing segment” of hemp products, said Ian Laird, chief financial officer of New Leaf Data Services, which monitors the hemp and cannabis markets. He estimated consumer sales to be at least $ 10 million, adding, “Delta 8 really came out of nowhere last year.” Marijuana and hemp are essentially the same plant, but marijuana has higher concentrations of Delta-9-THC – and, as a source of intoxication, it has been the primary focus of businessmen, as well as state and federal legislators. Delta 8, if discussed, was an esoteric and less potent by-product of both plants. That changed with the 2018 Farm Bill, huge federal legislation that, among other things, legalized the cultivation and widespread distribution of hemp. The law also specifically allowed the sale of plant by-products; the only exception was Delta 9 with a THC level high enough to define it as marijuana. As the legislation made no mention of Delta 8, businessmen jumped into the void and started extracting and packaging it as a legal alternative to eating and smoking. Precisely what type of high Delta 8 produces depends on who you ask. Some think of it as “light marijuana,” while others “are launching it as pain relief with less psychoactivity,” said David Downs, senior content editor at Leafly.com, a popular source of news and information about cannabis. Either way, Delta 8 has become “extremely upward,” said Downs, reflecting what he calls the “fall of prohibition gap”, where consumer demand and business activity are exploiting the holes in fractured legislation and in rapid evolution. “We are receiving reports that you can enter a truck stop in forbidden states like Georgia, where you are looking at what appears to be a bud of marijuana in a jar,” Downs said. The bud is made of hemp sprayed with high concentration Delta 8 oil. Joe Salome owns Georgia Hemp Co., which in October started selling Delta 8 locally and shipping nationwide – about 25 orders a day, he said. “It took off tremendously,” said Salome. Its website advertises Delta 8 as “very similar to its psychoactive brother, THC”, giving users the same relief from stress and inflammation, “without the same feeling of anxiety that some may experience with THC”. Salome said he didn’t need to buy an expensive state license to sell medical marijuana because he felt protected by the agricultural bill. “Everything is fine there,” he said, explaining that it is now legal to “sell all parts of the plant.” The legal landscape is, at best, contradictory. Many states are more permissive than the federal government, which, under the Controlled Substances Act, considers marijuana to be an illegal and highly dangerous drug. In 36 states, marijuana is legal for medical use. In 14 states, it is legal for recreational use. But in a twist, under the agricultural bill, the federal government opened the door to selling marijuana products even in states that have not legalized recreational use of marijuana. Only a few states, like Idaho, prohibit hemp altogether, but in others, Delta 8 entrepreneurs are finding a receptive market. Gilkey’s lawyers believe that agricultural law is on their side. “Delta 8, if it is derived from hemp or extracted from hemp, is considered hemp,” said Andrea Steel, co-chairman of the cannabis business group at Coats Rose, a Houston law firm. She emphasized that legality also depends on whether Delta 9 exceeds legal limits. Steel noted that when making a Delta 8 product, it can be difficult, if not impossible, to filter the entire Delta 9 from hemp. “Adding another crease,” she said, “many labs don’t have the ability to delineate between Delta 8 and Delta 9.” Lisa Pittman, the other co-chair of Coats Rose’s cannabis business group, said that in her reading of the issue, the authors of the agricultural bill may not have contemplated the consequences of the law. Pittman said the final question of a product’s legality may depend on other factors, including how Delta 8 is produced and purchased. Specifically, lawyers said, the DEA rule on the matter seems to suggest that Delta 8 may be illegal if it is done “synthetically” instead of being derived organically. Currently, there are pending cases regarding the interpretation of the DEA rule. Gilkey said he paid more than $ 50,000 in attorneys’ fees to make sure he didn’t break the law. A veteran of the United States Coast Guard, Gilkey worked in an anti-narcotics unit on boats in San Diego. He “saw really difficult things,” he said, and “was not happy with the war on drugs.” He ended up running a business in Austin that sold e-liquid for vaporization devices. Then, in 2019, he started his current business focused on selling CBD. Late last spring, he said, he started receiving customer calls about Delta 8. “I said, please explain to me what that is,” he recalled. Gilkey, whose company supplies other retail stores across the country with products, saw a huge opportunity. After checking with lawyers, he started packing gum and steam pens and other products on a large scale using Delta 8 that he said he obtained from a major hemp supplier. “It is about to become popular,” he said. And it is only the beginning. “There’s a Delta 10 under construction,” said Gilkey. This article was originally published in The New York Times. © 2021 The New York Times Company