“I feel like this is operating under a loophole right now.”
By Rebecca Rivas, Missouri Independent
As he was checking out at a convenience store one day, state Rep. Kurtis Gregory (R) said he looked down and saw “delta-8 THC” products being sold.
He had no idea THC, the intoxicating component mostly associated with marijuana, could be sold openly outside of dispensaries.
“I messaged a few folks and to my surprise, yep, that is completely at this point legal to be sold,” Gregory, a Republican from Marshall, said during a House committee hearing on Tuesday.
The products that caught Gregory’s eye give people a high by way of a concentrated amount of delta-8 tetrahydrocannabinol (THC) that’s typically manufactured from hemp-derived cannabidiol, or CBD.
Because hemp is legal, hemp-derived THC products avoid the intense scrutiny marijuana receives. In fact, they are completely unregulated by the state and federal government.
There’s no law saying teenagers or children can’t buy them or stores can’t sell them to minors—though some stores and vendors have taken it upon themselves to impose age restrictions of 21 and up. And there’s no requirement to list potential effects on the label or test how much THC is actually in them.
Gregory’s bill would task the Missouri Department of Health and Senior Services with regulating these products, as the agency currently does for the state’s marijuana program. And the products would have to be sold at DHSS-licensed dispensaries.
“The reason I’m doing this right now is there’s currently no age limits on it,” Gregory said. “I feel like this is operating under a loophole right now.”
During the Tuesday hearing, a number of people—from delta-8 businesses and law enforcement to the American Academy of Pediatrics and lawmakers—agreed that there needs to be age restrictions and regulations in product labeling and testing.
But both Republican and Democratic lawmakers pushed back on the idea of forcing the industry under the umbrella of DHSS, saying that would allow the “marijuana monopoly” to take over this market given the limited number of licenses for dispensaries available.
Rep. Ben Baker (R) talked about a business owner who went through the expensive medical-marijuana license application and was denied. Now he’s selling hemp-derived THC products.
“The ones behind the initial rollout of the medical marijuana weren’t greedy enough,” Baker said, “and now they’re coming after the businesses that made the best of it.”
The marijuana instantly became big business in Missouri after voters passed a constitutional amendment allowing medical marijuana in 2018. Competition for licenses became fierce when the state capped the number of applications it would approve, initially issuing 338 licenses to sell, grow and process marijuana—the minimum required in the constitution.
Widespread reports of irregularities in how applications were scored fueled criticism of the industry and accusations that insiders were building a monopoly. That criticism spilled into last year’s campaign to legalize recreational marijuana.
Another concern, critics said, is that hemp is federally legal, and lumping it in with the regulations of a controlled substance could result in lawsuits.
Gregory’s bill also states that no facility “shall manufacture or sell any product that contains synthetic cannabinoids or cannabimimetic agents,” which opponents say would hurt hemp businesses overall.
“I’m not inclined to think that the closing of the loophole should entail as effectively torpedoing the entire industry,” said Rep. Tony Lovasco (R).
Democratic Rep. Peter Merideth of St. Louis agreed.
“This bill sounds like it’s sort of using a hammer,” he said, “instead of a scalpel to address this problem.”
The federal farm bill
The 2018 Farm Bill removed hemp and hemp seeds from the Drug Enforcement Administration’s (DEA) schedule of controlled substances.
But at the time, lawmakers likely didn’t realize that with some technology and chemistry, people could extract enough THC to create products that “have lots of different feelings,” Josh Grigaitis, owner of the Mighty Kind Company, told The Independent in an interview last month.
And the federal government hasn’t caught up to figure out how to regulate these products.
“It’s moving way faster than they know how,” said Grigaitis whose company produces hemp-derived delta-8 and delta-9 seltzers. “So for the last five years, this has been bounced around between the [U.S. Food and Drug Administration] and currently, they have put it on Congress to enforce or regulate the space of hemp.”
In January, the FDA issued a statement that the regulation needs to happen, and the agency is “prepared to work with Congress on this matter.”
Missouri does not have a regulating agency for hemp. The state punted that regulation to the U.S. Department of Agriculture last year. A USDA spokesperson said the agency only regulates the concentration of total delta-9 THC in raw hemp.
“The 2018 Farm Bill did not specifically address delta-8 and the USDA regulation does not regulate hemp products. Delta-8 is manufactured in laboratory facilities for which USDA has no jurisdiction or enforcement capabilities.”
In March 2021, the USDA issued a rule stating: “Delta-8 THC is unrelated to the 0.3 percent delta-9 THC limit or the ‘post-decarboxylation delta9 THC.’”
Lisa Cox, spokeswoman for DHSS, said the agency is only authorized to regulate medical and adult-use of cannabis, not hemp-derived products.
The lack of authority on a state and federal level presents a problem for people in the hemp industry who are advocating for regulations.
“The federal government kind of leaves us out in limbo,” said John Grady, a product developer with Slaphappy Beverage Company, which sells delta-8 drinks, on Tuesday. “It goes back and forth between agency and agency that nobody actually wants to pull the trigger and regulate things.”
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Hemp vs marijuana
Both hemp and marijuana belong to the same species, Cannabis sativa, and the two plants look somewhat similar.
The defining difference between hemp and marijuana is their psychoactive component: THC.
The term THC most often refers to delta-9 THC, which is the most prominently occurring THC in cannabis.
According to the Centers for Disease Control and Prevention, marijuana refers to all parts of the plant Cannabis sativa with more than 0.3 percent delta-9 THC by dry weight.
Any part of the plant containing 0.3 percent or less THC by dry weight is defined as hemp.
In its natural form, delta-8 THC only exists in only small quantities in the plant and is estimated to be about 50-75 percent as psychoactive as delta-9 THC.
But there’s a synthetic way to amp that up, and this is what Gregory’s bill takes aim at.
Hemp tends to have more CBD than marijuana, which is a compound or cannabinoid found in the cannabis plant that is not psychoactive. However, CBD can be synthetically converted into delta-8 THC, as well as delta-9 THC using a solvent, acid, and heat to produce higher concentrations of delta-8 THC than those found naturally in the plant.
These “synthetic cannabinoids” are what Gregory was surprised to see in the convenience story, and it’s what his bill would ban the manufacturing of.
There’s little research on delta-8, but one collaborative study from the University of Buffalo and University of Michigan found delta-8 had better effects than delta-9, as far as causing less paranoia, anxiety, particularly among pediatric cancer patients.
“It’s paradoxical that different states and municipalities are opening up to delta-9, it’s becoming more available and increasingly legalized, and yet they’re putting the brakes on delta-8, even though it seems to have a better profile in terms of its effects,” said Daniel Kruger, an affiliated research professor at UB’s School of Public Health and Health Professions.
It takes a $500,000 machine to extract delta-8, which is why there are only about 20 companies in Missouri doing it, Sean Hackmann, president of the Missouri Hemp Trade Association, told The Independent.
Through his company Grandpa’s Family Farms, Hackmann produces and sells delta-8 gummies and CBD.
“They call it unregulated, which technically, it is,” he said. “It’s self regulated, except for the fly-by-night idiots who don’t care. We spent a lot of money on testing these products to make sure there’s no metals… contaminants or anything in these products.”
There isn’t a requirement to put anything on his labels, but his 20mg edibles say: “This product produces a similar effect to THC. Do not operate machinery during or after consumption. Effects may exceed 8 hours.”
The association strongly urges its members to put an age restriction of 21 and up on their delta-8 products. They’ve been working on legislation that would outline this restriction and other regulations for hemp-derived products, he said but it has not yet been filed. The association is opposed to Gregory’s bill.
Anthony David, owner and CEO of Green Precision Analytics, a DHSS-licensed Missouri marijuana testing facility, testified Tuesday in favor of the bill.
“We don’t know exactly what’s in the product and often where it came from,” David said. “The process of isomeric conversion and these hemp products is massively dangerous and can include corrosive chemicals.”
David said he hopes the bill isn’t seen as “an attack on the hemp industry.”
“It’s purely a safety issue,” he said.
Cases of poisoning in children
Julie Weber, director of the Missouri Poison Center, said that since recreational use was legalized in November, the number of poisoning cases from delta-8 has dropped.
“It doesn’t mean that the exposures are not occurring,” Weber told The Independent in an interview last week. “But the turn has really been to the edible cannabis products that we are seeing a definite increase in our cases.”
In 2022, they had 25 cases involving delta-8 cases for all ages. And so far this year, there have been three cases. None were children.
The growing cause of poisoning is the marijuana edibles, she said. For cases of children five and under, it’s increased from seven cases in 2018 to 125 cases in 2022. Both forms of intoxicants concern Weber.
“One may just cause a more potent high or a stronger reaction than the other,” she said. “Either way, I’m sure that it’s not a good feeling for the children.”
And as a poison expert, the lack of regulation is a big concern.
“Do we really know what is being put into that product?” she said. “That’s the scary part.”
Photo courtesy of Chris Wallis // Side Pocket Images.