The hemp-derived cannabinoid market is hotter than ever but experts warn that people should educate themselves about the fundamental differences between delta-8 THC and delta-9 THC products. High Times previously reported that delta-8 THC was first partially synthesized in 1941, yet there’s still a lot of controversy surrounding the ingredient, due to the way it’s extracted and converted. 

Nextar reports that a Johns Hopkins School of Medicine professor and other experts want to educate people about the choices they should make with cannabis.

“Chemically, they’re almost identical. But that one little difference in that chemical structure results in a different way that it interacts with your body … with your [cannabinoid] receptors,” explains Ryan Vandrey, Ph.D., a professor at the Johns Hopkins School of Medicine who specializes in the behavior pharmacology of cannabis.

The majority of delta-8 on the market is converted from CBD, using a natural solvent and an acid as a catalyst, but people inside and out of the cannabis industry cannot seem to agree whether delta-8 should be defined as synthetic or natural. 

Vandrey also added that delta-9 THC is stronger, so why would consumers go to delta-8?

“The reason people call delta-8-THC ‘diet weed’ [is because] that chemical difference is a little less potent at what it does at the receptor,” Vandrey said, adding that delta-8 is “about half as effective” at producing the same high as delta-9.

“Does delta-8 THC get you high or is it a scam?” a popular Reddit thread in r/weed asked. The consensus appears to confirm that it has fewer psychedelic effects compared to delta-9 THC.

Sales of hemp-derived cannabinoids like CBD outpace adult-use cannabis and are comparable to the craft beer industry, Whitney Economics found. There are no signs that the industry is going to slow down.

Representatives from NORML have told High Times that delta-8 is not a primary concern, but it’s more about residual chemicals and other byproducts in gas station hemp products you should be worried about most. Dale Gieringer of Cal NORML specifically warned about THCO, which he thinks is instead one of the more particularly problematic compounds with the potential for real injuries.

Peter Grinspoon, M.D.,a primary care doctor at Mass General Hospital and an instructor at Harvard Medical School, supports medical cannabis but says state medical cannabis programs do a much better job at vetting ingredients than shops selling delta-8 products.

Grinspoon clarified that the confusion caused by the federal government itself makes it hard to distinguish what’s safe and what’s not regarding hemp-derived cannabinoids.

“In addition to lack of regulation, we have regulatory incoherence from different branches and levels of government. … That’s going to make it even harder to get any coherent regulation on things,” he told Nexstar.

Legal experts noted that the FDA had no intention of legalizing delta-8 when the 2018 Farm Bill was passed, so time’s ticking for the hemp-derived cannabinoids industry. But sellers have it practically everywhere.

“Delta-8 is so close to delta-9, it’s probably relatively safe,” Grinspoon said. “But even if we figured out that delta-8 is safe—the delta-8 you’re buying at your local smoke shop, we have no idea what’s in it.”

The 2018 Farm Bill paved the way for the Ninth Circuit Court to rule that certain low-THC cannabis derivatives were exempt from the Controlled Substances Act. This left a loophole for hemp-derived products that produce a psychoactive effect, but the feds never intended to do so.

The Food and Drug Administration (FDA) warned that delta-8 and similar cannabinoid derivatives, have “psychoactive and intoxicating effects that may be dangerous to consumers” and urged Congress to act and set up regulations. These hemp-derived cannabinoids leave room for the potential of harmful contaminants, the FDA says.

How is Delta-8 THC Made?

Delta-8 THC is only found in minute amounts in the wild, therefore in order to get enough to infuse products, it must be converted from CBD. Roger Adams and a team of researchers at the University of Illinois were the first to report partial synthesis of delta-8 in 1941.

High Times reported on exactly how it’s done:

The publication Chemical and Engineering News (CEN) described the process as “refluxing CBD in an organic solvent, such as toluene or heptane, with p-toluenesulfonic acid or another acid that serves as a catalyst.” In a controlled, regulated environment, these reactions would be done by PhD chemists to ensure there are no harmful by-products left in products sold to consumers, but the hemp industry is notoriously under-regulated with no requirements for lab testing.

CEN also described the rise of delta-8 THC “a concern.”

It’s up to every consumer to adhere to “buyer beware,” or at least know the differences between delta-8 and delta-9 THC, which are significant.

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In an email response sent to Rod Kight of Kight Law Office PC on Feb. 13, the Drug Enforcement Administration (DEA) stated that because delta-9-THCO and delta-8-THCO are synthetic and are not found naturally in cannabis, they do not count as hemp, and are therefore controlled substances.

Kight’s letter was originally sent in August 2022 (and a follow-up email sent last week on Feb. 7) with a request for the status of THC acetate ester (THCO) under the Controlled Substances Act (CSA).

Terrence L. Boos, Chief Drug & Chemical Evaluation Section Diversion Control Division penned the response, and clarified the agency’s stance on delta products. “The only substances of which the Drug Enforcement Administration (DEA) is aware of the THC acetate ester are delta-9-THCO (delta-9-THC acetate ester) and delta-8-THCO (delta-8-THC acetate ester),” Boos said. “The Drug Enforcement Administration (DEA) reviewed the CSA and its implementing regulations with regard to the control status of these substances.”

Boos explained that the CSA classifies “tetrahydrocannabinols,” or THC, as “naturally contained in a plant of the genus Cannabis (cannabis plant), as well as synthetic equivalents of the substances contained in the cannabis plant and/or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity to those substances contained in the plant.”

Because of this definition, neither delta-9-THCO or delta-8-THCO are considered to be hemp by the DEA. “Delta-9-THCO and delta-8-THCO do not occur naturally in the cannabis plant and can only be obtained synthetically, and therefore do not fall under the definition of hemp,” wrote Boos.

He added that delta-9-THCO and delta-8-THCO have “similar chemical structures and pharmacological activities to those contained in the cannabis plant,” and thus meet the definition of “tetrahydrocannabinols,” which the agency classifies in Schedule I. He also included the molecular structure of delta-9-THCO and delta-8-THCO for reference at the end of the letter.

In a written statement from Michelle Bodian, a partner at Vicente Sederberg, Bodian explained what this news could mean for the industry. “While the latest statement from DEA does not clarify the legal status of all novel hemp derived cannabinoids, it does clarify that DEA believes Delta-9THCO and Delta-8THCO are controlled substances,” said Michelle Bodian, Partner at Vicente Sederberg. “Hopefully, there is Congressional action soon to address the legality of all hemp derived cannabinoids, so the industry is not left with a patchwork of law, regulation, policy and now, letter statements.”

While the government has been silent on a definitive course of action in regard to regulating delta products, state legislators have been left to take action on their own.

Delta-8 products were banned in New York in May 2021. Ohio created new rules to govern delta-8 products in June 2021, including production and sales. A new law introduced in Michigan in July 2021 also created regulations that limited the sale of delta-8 products to only cannabis businesses that were licensed by the Michigan Marijuana Regulatory Agency. Later in November 2021, a Texas judge issued a temporary injunction that removed delta-8 from the state’s list of Schedule I substances.

In May 2022, governmental agencies such as the Food and Drug Administration (FDA) sent out warning letters to businesses selling delta-8 products. “The FDA is very concerned about the growing popularity of delta-8 THC products being sold online and in stores nationwide,” said FDA Principal Deputy Commissioner Janet Woodcock. “These products often include claims that they treat or alleviate the side effects related to a wide variety of diseases or medical disorders, such as cancer, multiple sclerosis, chronic pain, nausea, and anxiety.”

In the most recent string of delta-related news, Connecticut Attorney General William Tong recently announced that his office was suing five retailers selling cannabis without a license, specifically in relation to delta-8 THC. “Cannabis products in Connecticut cannot be sold by unlicensed retailers and must meet rigorous testing and packaging requirements. Period,” said Tong in a statement. “Any unlicensed Connecticut retailer selling delta-8 THC products that purport to contain high levels of THC is breaking the law and may be subject to both criminal and civil penalties.”

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