As cannabis legalization spreads across the United States, another industry emerged along its margins in 2021: the unregulated hemp-derived cannabinoids market.
The best-known of these products, delta-8 THC, is sold in unregulated smoke shops and online stores across the country.
Today’s hot cannabinoid, delta-8 THC, has been known to science for 80 years.
Delta-8 and other hemp-derived cannabinoids, including delta-10 THC, THC-O, and HHC, are typically derived from CBD, which is itself derived from federally legal hemp. (Hemp is cannabis that contains less than 0.3% delta-9 THC.)
Products using these hemp-derived cannabinoids like have found an especially receptive audience in states that haven’t yet legalized cannabis for all adults.
These cannabinoids’ effects on the body (as well as the processes required to produce them) are quite varied. The most popular hemp-derived cannabinoid, delta-8 THC, is often described as “marijuana light” because of its gentler effects, while THC-O acetate is notorious for being so potent that it has been likened to psilocybin.
The legal fate of these synthesized cannabinoids reached a fever pitch in the past six months. New York State banned the production of hemp-derived cannabinoid products, and, as Leafly reported, Texas retailers challenged an attempt by the state’s Health Services Department to prohibit them altogether. To make matters even more complicated, around the same time, the DEA made statements in late 2021 suggesting that delta-8 THC may be legal after all.
How did we get here?
Have these compounds been known for years, but only sold once the federal hemp loophole opened up? Or did the loophole drive the demand to create new compounds to satisfy the market?
Federal hemp legalization created an entire national market for these once-obscure cannabinoids.
As it turns out, it’s more the former than the latter. Many of today’s hemp-derived cannabinoids have been known for decades, but were assumed to be illegal, so nobody bothered to create products around them.
But once they turned legal, things changed—and fast.
“What’s interesting is how quickly the innovations have started to occur in the hemp industry,“ says Kyle Ray, the COO of Colorado Chromatography, a company that produces hemp-based cannabinoids like HHC and THCV. “With these loose regulations, and not a very strong legal framework, people have left that open to extreme interpretation. People have pushed that to the limit both scientifically and from a legal perspective. They’re really trying to poke the bear on this and push the boundaries of what is and isn’t acceptable. “
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Although hemp-derived cannabinoids have become widely popular only in the past year, they were first identified 80 years ago, just before the U.S. entered World War Two.
Timeline: A history of cannabinoid discoveries
- 1941 – American chemist Roger Adams, leading a team at the University of Illinois, publishes a paper announcing the first known synthesis of delta-8 THC. The following year, Adams’ team conducts their first experiments on human subjects. Adams’ groundbreaking research did not go unrecognized: The Roger Adams Award in Organic Chemistry was established by the American Chemical Society in 1959.
- 1944 – Roger Adams becomes the first scientist to synthesize hexahydrocannabinol (HHC). Created by adding hydrogen molecules to THC, HHC is recognized for its relatively mild, soothing effects.
- 1949 to 1975 – THC-O (also known as THC acetate) was likely first synthesized by the US Army Chemical Corps at Edgewood Arsenal, a secluded research facility on the shores Maryland’s Chesapeake Bay. THC-O, which has also become popular in recent months, has a reputation for being three times more potent than conventional delta-9 THC, earning it the nickname “the spiritual cannabinoid.”
- 1963 – The renowned Israeli chemist Raphael Mechoulam isolates cannabinol (CBD) for the first time.
- 1964 – Mechoulam isolates delta-9 THC for the first time.
- 1978 – The DEA busts a secret lab in Jacksonville, Florida, that had been attempting to produce THC-O. A full ten years later, in 1986, agency chemist Donald A. Cooper noted that the recovered THC-O was in fact an analogue of conventional delta-9 THC. He and other DEA officials dismissed the lab as a one-off experiment, however, and did not see it as a reason for concern.
- 1980’s – Delta-10 THC is synthesized for the first time. Like delta-8 THC, this cannabinoid is reportedly less potent than conventional delta-9 THC, but boasts sativa-like, energizing effects.
- 1986 – Congress passes the Federal Analogue Act (FAA), which will have great significance in the 2020s. This law holds that any chemical “substantially similar” to a Schedule I substance should be itself considered a Schedule I substance. The Federal Analogue Act is cited by some as the main legal reason hemp-derived cannabinoids with intoxicating effects similar to delta-9 THC should be considered illegal Schedule I substances.
- 2001 – A team of scientists, including Raphael Mechoulam, patent their process for converting CBD to delta-8 THC and delta-9 THC, which they refer to as isomerization.
- 2010 – The “synthetic marijuana” drug K2, also known as Spice, explodes in popularity. The term is a misnomer, as K2/Spice is in no way derived from the cannabis plant. Instead, it’s made by spraying synthetic psychoactive chemicals like acetone or roach spray (which stimulate endocannabinoid receptors in the brain) on plant material. It’s then sold falsely as marijuana, often with a disingenuous label advising “not for human consumption.” The product is completely unregulated, not subject to any quality control, and has proven to be extremely dangerous to human health.
The big bang: Congress and the 2018 farm bill
Up until 2018, hemp-derived cannabinoids remained a negligible part of the marijuana industry—legal or not. There just wasn’t a reason to go to all the trouble of extracting them from hemp, as long as they were as illegal as delta-9 THC in prohibition states.
That all changed on December 20, 2018, when President Trump signed the 2018 farm bill into law. That bill, passed by a Republican Congress, federally legalized the cultivation and production of hemp. It furthermore legalized the transport of hemp (legally defined as a cannabis plant containing less than 0.3% delta-9 THC) across state lines.
In the spring of 2019, farmers across the country planted fields of hemp—mainly with an eye toward supplying the exploding CBD market. But come fall, that green rush led to a glut in the hemp market. Farms were left with tons of product, and no easy way to sell it.
Too much hemp, so…
Fortunately for the farmers, legally savvy cannabis product makers had realized that the farm bill allowed them to make and sell any cannabinoid-based product as long as its original source was hemp and the product didn’t contain delta-9 THC.
So the hemp farmers sold much of their production to hemp-derived cannabinoid producers. Those producers sold to product manufacturers, who found an eager market of millions of cannabis consumers in non-legal states—states in which hemp-derived cannabinoids were now technically legal.
In a Feb. 2021 New York Times report, the Austin-based company Hometown Hero observed that the number of new customers “coming into Delta 8 is staggering.” Ian Laird, chief financial officer of New Leaf Data Services, estimated delta-8 consumer sales of at least $10 million. “Delta 8 has really come out of nowhere over the past year,” he said.
States push back with bans and regulations
Since the start of 2021, delta-8 THC and other hemp-derived cannabinoids have been banned in over a dozen states. In Texas, one of the nation’s most robust hemp-derived cannabinoid market, a roiling lawsuit over the legality of D-8 is making its way through the state judicial system.
As of this writing, delta-8 THC and other hemp-derived cannabinoids are banned, or sales restricted, in the following states: Alaska, Arizona, Colorado, Delaware, Kentucky, Idaho, Iowa, Michigan, Mississippi, Montana, New York, North Dakota, Rhode Island, Utah, Vermont, and Washington.
Yet in the same timeframe, two other states have at least partially legalized the sale of hemp-derived cannabinoids: Connecticut and Arkansas.
Timeline: The boom after the 2018 farm bill
- September 2019 – 3Chi becomes the first company to sell delta-8 THC cartridges, gummies, tinctures, and concentrates, both online and in retail locations.
- May 2020 – Vermont’s Agency of Agriculture, Food and Markets adopts hemp rules that ban the use of “synthetic cannabinoids in the production of any hemp product or hemp-infused product.” Although hemp-derived cannabinoids aren’t actually “synthetic,” Vermont used the term to differentiate them from cannabis not derived from hemp.
- April 2021 – Washington State’s Liquor and Cannabis Board bans products containing “synthetically derived” THC, including delta-8.
- April 2021 – North Dakota legislators pass House Bill 1045, which bans any hemp-derived product including more than 0.3% THC, which includes delta-7, delta-8, and delta-10 THC.
- April 2021 – Kentucky’s Department of Agriculture issues a letter “advising” that the production, sale and possession of delta-8 THC and other THC isomers is illegal. After several vendors are raided in June, the Kentucky Hemp Association sues the state, seeking a temporary injunction. In the interim, some businesses have continued to stock delta-8 THC products.
- May 2021 – New York bans the in-state manufacture of all “cannabinoids created through isomerization.”
- May 2021 – Colorado bans the purchase, use, possession, sale, distribution, and production of delta-8 and all THC isomers. (Colorado Chromatography, the business quoted earlier in this story, does not produce such compounds.)
- May 2021 – The DEA adds delta-8 to its “orange book,” a list of controlled substances. The addition does not directly impact laws, but instead offers guidance on how agents should consider the compound. Shane Pennington, counsel at the national law firm Vicente Sederberg, put it this way to Hemp Grower: “Even if the agency doesn’t have the resources right now, or hasn’t done enough research to be sure what they think the law is on something …, the regulated public still wants to know what the agency thinks.” He added that no agency documents “show that [delta-8] is a controlled substance. They just show that delta-8 has been on regulator radars for a very long time.”
- July 2021 – Connecticut legalizes THC derivatives…sort of. As part of the state’s cannabis legalization framework bill, all THC derivatives will be legal, but only available for purchase at state-licensed shops. Since those sales haven’t begun yet, delta-8 THC products remain illegal for the time being.
- July 2021 – Michigan Gov. Gretchen Whitmer signs House Bill 4517, which limits the production of hemp-derived cannabinoids to licensed Michigan marijuana producers.
- September 2021 – The FDA and the CDC issue statements cautioning Americans against consuming delta-8 THC products, citing an uptick in “adverse reactions” to them. Most of those adverse reactions seem to involve people who thought they were consuming non-intoxicating CBD, but instead found themselves getting high. “It is important for consumers to be aware that delta-8 THC products have not been evaluated or approved by the FDA for safe use in any context,” the agency says. “They may be marketed in ways that put the public health at risk and should especially be kept out of reach of children and pets.”
Between Dec. 2020 and July 2021, poison-control centers received 660 calls from people who consumed Delta-8 THC. As Forbes reported, almost all of them were minors, and had been hospitalized with symptoms including lethargy, slurred speech, erratic heart rates, sedation, and even “coma.”
- September 2021 – Arkansas legalizes delta-8 THC via House Bill 1640.
- October 2021 – Texas officials move to ban hemp-derived cannabinoids, but in Nov. 2021, Judge Jan Soifer grants a temporary injunction to the state’s delta-8 THC vendors. As Leafly has reported, a full ruling is expected in Jan. 2022.
- November 2021 – DEA Chief of Intergovernmental Affairs Sean Mitchell says that the agency does not consider delta-8 THC to be federally illegal. “At this time,” Mitchell says, “per the farm bill, the only thing that is a controlled substance is delta-9 THC greater than 0.3 percent on a dry-weight basis” during a virtual town hall event in Florida.
Where are hemp-derived cannabinoids headed next?
Despite recent rulings, the future of hemp-derived cannabinoids is far from clear. It’s hard to imagine that the big legal battle in Texas will settle the issue nationwide.
Furthermore, the growing possibility of federal cannabis legalization throws the future of hemp-derived cannabinoids into question.
“If cannabis was federally legal in 50 states, you think there’d be any THC-O or delta-8 or HHC out there? I don’t think any of them would be on the market unless it was way cheaper [than conventional cannabis and delta-9 THC],” says James Stephens, a cannabis researcher who works at the California-based cannabinoid biosynthesis company Creo.
But if the industry is permitted to progress, it will continue to evolve. Kyle Ray, of Colorado Chromatography, suspects that customized blends of cannabinoids that allow consumers to fine-tune their experience could be on the horizon.
“I think in the next decade or so you’re going to see [hemp-derived] blends rise in popularity,” he tells Leafly. “I think flower is still going to reign supreme, and live extract distillates will be the next most popular, followed by gummies, [but] I think there’s going to be a niche subset of people who prefer these cannabinoid blends because you can customize your experience based on your mood. I think that’s the direction we’re headed.”
James Stephens, of Creo, agrees that more manageable products are likely coming, but sees them being produced in new “form factors” like beverages and tablets, and in modified, less potent compounds.
“The canna-curious is what everyone is going to try to chase,” he tells Leafly. “There’s going to be a desire to go towards form factors that are fast-acting and clear out of your system faster, like alcohol. I think that’s where you’re going to see a ton of chemistry go. I think the next phase is ppl working hard to chemically modify cannabinoids to do it.”
“You’re going to see people do it [with or without regulatory approval] and release it into the market…That’s where I really see the industry pouring a lot of effort in the next 3-5 years.”
And if producers are stymied, as we’ve learned from the history of hemp-derived cannabinoids, they will be sure to seek out another solution, however temporary it may be.