Editor’s Note: This story has been updated to include information from KSP on the agency’s raid of Eastern Kentucky Hemp Co. in Morehead, Kentucky.
Have you tried Delta 8?
It’s found in Louisville hemp shops. Your fave Instagram influencer is pushing it on their profile. Your friend offered you a hit off his vape last time you saw him.
It’s a “legal weed.” You don’t really understand what it is or how you’re able to use it in a state as anti-pot as Kentucky. But sure, you’ll try it.
The answers behind what it is and its legality are more complicated than it may seem based on Delta 8’s ubiquitousness.
But, let’s start with the basic facts.
Delta 8 is a kind of THC. It’s a naturally-occurring compound that is found in small amounts in the cannabis plant. Usually, when people refer to THC, they’re talking about Delta 9, the main psychoactive ingredient in cannabis. But, Delta 8 has psychoactive effects, too. The two types of THC are molecularly similar, but Delta 8 has a double bond on its eighth carbon instead of its ninth. Delta 8 has not been researched much, but a small study in Israel in the ‘90s found that it helped child cancer patients beat nausea.
Now, to the aspects of Delta 8 that aren’t officially proven, but which many users and sellers report: It purportedly doesn’t get you as high as Delta 9 does. The way Delta 8 works within the endocannabinoid system suggests that this is the case, although it hasn’t been stringently studied. It’s also said to not make you as anxious or paranoid as Delta 9 can.
Depending on who you talk to, Delta 8 is either a clever workaround to help would-be medical marijuana patients legally ease symptoms, or it’s a way for the hemp industry to make money after a tough couple years starting in 2019.
“To me, it was the bridge between medical marijuana and CBD that people needed,” said Dee Dee Taylor, the founder and CEO of 502 Hemp, a shop in the Louisville area that sells Delta 8 products through its online store registered in Indiana.
Adriane Polyniak, the owner of Bluegrass Hemp Oil, wants the hemp industry to keep its focus on CBD — a hemp derivative without psychoactive side effects — which has helped her 16-year-old son overcome his seizures.
“While businesses like us are still pushing to legitimize it, and to encourage people to find an all-natural option for their health concerns like our son has found, the industry is just moving from one thing to another, just to make a dollar,” she said.
The argument for why Delta 8 is legal goes back to the 2018 Hemp Farming Bill. This federal legislation OK’d hemp-derived substances as long as they contained less than 0.3% of Delta 9 THC. But, the Kentucky Department of Agriculture, or KDA, claims that Delta 8 is, in fact, still illegal because it is listed as a controlled substance by the DEA. Kentucky is one of 16 states that have made moves to restrict Delta 8. Michigan is working on plans to regulate it.
This has led to the Kentucky State Police raiding some stores selling Delta 8 products in the state. The Kentucky Hemp Association has responded by filing an injunction against the KDA and the KSP in an attempt to stop the raids and to clarify the legality of Delta 8.
Delta 8 products, similarly to all consumable hemack regulations by the federal and state government. Even proponents, like Jana Groda, the vice president of the Kentucky Hemp Association, warn that cop-derived products, also lnsumers should be careful with where they buy Delta 8 and what businesses they buy it from.
“The big concern is that it’s done correctly and not in your kitchen,” said Groda, who is also the owner of One Love Hemp Dispensary in Louisville.
What users have to say about Delta 8
In a video titled, “Will Delta-8 Get a Stoner High,” YouTuber Anna Campbell takes a hit from a Delta 8 vape called Delta Effex.
“Ooo,” she exclaims with wide eyes before blowing out a cloud of vapor. She calls a friend to fill her in on the experience.
“I took one hit of it, and I’m high!” she says with shock.
After several puffs off of several Delta Effex products, she summarizes, “I feel like it’s a good, happy medium, although I will say, it’s closer to THC than CBD.”
In a different Delta 8 video, YouTuber Drew Gunby describes his first experience trying Delta 8 in between hits of a Cake-branded cart.
“I’m just lifted. I’m not faded. I’m not zooted. I mean, I’m kind of zooted right now. But like it’s just a lift. You’re lifted. And you’re in the zone,” he says.
The way in which Delta 8 THC is known to interact with the endocannbinoid system indicates that it probably won’t get you as high as Delta 9 THC, according to leading cannabis researcher Dr. Ethan Russo. But, this lack of potency can be overcome with a higher dose, he said.
Taylor, the owner of 502 Hemp, said many of her customers use Delta 8, not to get high, but to ease symptoms of chronic sicknesses. Some are as old as 80, and others are as young as 21, the cut-off age for who Taylor will sell Delta 8 products to.
“I have cancer customers that use the Delta 8 instead of opiates,” she said. “One man, he has bladder cancer and he says that this makes such a difference for him… It relieves some of the pain he feels from the bladder cancer, and he’s able to sleep better.”
Taylor said she assumes some of her customers are using Delta 8 recreationally. And she doesn’t mind that, either.
“There’s absolutely nothing wrong with that if they’re being a responsible adult,” she said. “And they’re sitting at home, and using those Delta 8 products to get high and then ordering some pizza. Why should that be an issue? Yeah, I mean, are we not, we’re supposed to be free. We’re supposed to be able to do what we want. I think it’s better than drinking alcohol and driving.”
How Delta 8 is made and concerns about impurities
Delta 8 does not occur in large enough quantities in the hemp plant for it to be extracted in an economically viable way. Instead, producers convert hemp-derived CBD to Delta 8 through a process called isomerization.
It’s a procedure that requires an acid, as well as a knowledgeable chemist to ensure that no potentially dangerous products are left behind, according to Chris Ware, the founder and CEO of KCA Labs, an independent testing laboratory in Kentucky that tests hemp-derived products at the behest of processors.
Currently, there are next to no regulations for what a Delta 8 product can or cannot have in it, besides limits on Delta 9 levels. This is similar to the case for other hemp-derived products, too. There are few state or federal regulations for these substances, which include CBD. The contents of a CBD product must match what is on the label. The FDA restricts CBD businesses from advertising their product for therapeutic or medical uses.
Different businesses and organizations have conducted their own experiments, testing Delta 8 products from store shelves.
The U.S. Cannabis Council, which represents state-licensed cannabis companies, tested 16 products from unregulated stores in eight states, including Indiana.
The results from ProVerde Laboratories showed that some of the products contained metals — copper, chromium and nickel — at higher limits than recommended by the USP, an independent, scientific nonprofit. None of the products were compliant with the 2018 Farming Bill, meaning they had more than 0.3% of Delta 9.
KCA Labs did its own informal case study, testing 10 vape products pulled from gas station and head shop shelves in the Bowling Green, Louisville and Lexington areas.
The lab was looking for olivetol, which can potentially be dangerous when inhaled. They did not find it, but they did discover that none of the products’ contents matched their labels. Some of the products had less Delta 8 than advertised and more Delta 9, to the point of being non-compliant with the Farming Bill, according to Ware.
KCA did not test the products for heavy metals.
With the Delta 8 isomerization process, degradation molecules and unstudied isomers might end up in the final product, too according to KCA Labs.
“They could cure cancer for all I know,” said Ware. “Or, they could create it. It just hasn’t been studied.”
The reason KCA conducted its own study was to determine whether Delta 8 products should be tested more often, said Ryan Bellone, commercial director of KCA Labs. His conclusion was that yes, companies should be, but it’s more complicated than that.
“We should be testing a lot more on a lot of these things, but, you know, the FDA hasn’t told us what to test for,” he said. “And basically, we have to figure out what people are adding in and how they’re extracting and how they’re converting.”
Theoretically, a garage scientist could make Delta 8 at home with muriatic acid, battery acid or vinegar.
Making Delta 8 might be complicated for an amateur, but Will Sutterfield, the founder of Eastern Kentucky Hemp Co. claims that it’s not big deal for a lab used to making CBD, which also requires solvents.
“If you’re a reputable lab, if you’re actually a professional company, it is no big deal to remove these extra keys that you use in these solvents from the end compound,” he said.
Sutterfield makes his own Delta 8 products via a lab in California and vets them with microbial and toxicology tests, he said.
Bellone puts the volatility of creating Delta 8 slightly higher than the process to make CBD.
“I would compare [Delta 8] more to, like, unregulated products in a head shop,” he said, although he noted he wouldn’t go so far as to compare Delta 8 to other synthetic drugs.
Hemp store owners say that there are ways to ensure that the Delta 8 products you are buying are safe.
Taylor recommends asking for a certificate of analysis, or test results from third-party, independent labs. She also suggests that consumers obtain lab results that come from ISO/IEC 17025-accredited labs and cGMP audit-certified labs.
And, Taylor advises consumers against buying Delta 8 from gas stations. 502 Hemp vets its Delta 8 producers, she said.
A couple months into selling Delta 8 back in 2020, Jana Groda pulled the products from her shop’s shelves over concerns about some of the businesses making Delta 8 products. She tested each product at her own expense through a third-party lab. After its results for mycotoxins, pesticides and Delta 9 amounts turned up clean, she started selling Delta 8 again. This was all before the Kentucky Department of Agriculture issued its opinion that Delta 8 is illegal in Kentucky. Now, her shop’s website says it sells Delta 8 products online and via curbside pickup in Indiana only.
Groda recommends that consumers not buy Delta 8 sold by a brand that doesn’t have a website or stores that don’t check for ID.
“Whenever things look sketchy, things feel sketchy, it probably is sketchy,” she said. “And the same thing goes with CBD and Delta 9.”
Without regulations, though, businesses are not required to test for certain things. It’s the lack of regulations, along with Delta 8’s hazy legality, that leads to Russo saying that using Delta 8 products, in general, is not a good idea.
“I can’t recommend that people be trying these products,” he said.
Instead, Russo wants cannabis to be de-scheduled all together and then regulated.
“What we need is reform of cannabis laws that’s going to allow greater access to patients and not bear the necessity of these chemical processes to try and create something that they hope is a legal loophole,” he said.
Is it actually legal?
On April 19, 2021, one day before the pro-weed holiday of 4/20, the Kentucky Department of Agriculture issued an opinion letter, saying that Delta 8 products in Kentucky are illegal.
The department had been receiving questions about Delta 8’s legality, the letter said, and the agency had determined that it was not.
The DEA still lists Delta 8 as a controlled substance, despite the 2018 Hemp Farming Bill, which legalized hemp-derived substances as long as they contain less than 0.3% of Delta 9 THC.
The DEA approved a rule last year clarifying its stance on the Hemp Farming Bill. The rule stated that synthetically-derived tetrahydrocannabinols (THC) are still controlled substances.
Delta 8 proponents argue that it is not synthetic. But, Harris Bricken, a law firm specializing in cannabis law, said in a blog post that the DEA likely considers Delta 8 to be synthetic because it is produced from hemp CBD through a chemical reaction.
In a statement, KDA’s director of communications Sean Southard said that the Kentucky General Assembly and U.S. Congress passed hemp laws after being assured by advocates that hemp was not an intoxicating substance.
“Now, some want to argue that lawmakers accidentally legalized an intoxicating synthetic substance called Delta-8 THC,” said Southard.
A federal law also bans substances that have a “substantially similar” chemical structure to a controlled substance like Delta 9 THC. And, those that have a “substantially similar” stimulant, depressant or hallucinogenic effect. This law could be applied to Delta 8.
Groda, with the Kentucky Hemp Association, said she wants to let a judge decide whether Delta 8 is legal or not in Kentucky. She hopes that the Association’s injunction accomplishes this.
“If it’s banned, then let’s ban. If it’s not banned, then let’s make it not banned. But it should be very clear,” said Groda.
The business of Delta 8
Delta 8 emerged on the hemp scene in 2020, the year after the hemp industry — nationwide and in Kentucky — started to wane.
After the Hemp Farming bill passed, an influx of farmers and processors saturated the market. The pandemic has not helped the industry.
Several of the CBD shops that flooded Bardstown Road started to close, said Groda. The number of hemp processors and growers in Kentucky has declined, too. In 2019, there were 978 licensed hemp farmers in Kentucky and 200 processors, according to the KDA. As of June 2021, there were 450 growers and 140 processors.
Hemp businesses also blame the KDA for hurting the hemp industry, such as the department’s enforcement of a state law that prevents hemp flower from being sold on the public market in Kentucky.
The KDA says it is simply following the rules state lawmakers have approved for the hemp program. And, in a statement, Southard blamed the FDA for dragging its feet on issuing guidance for CBD products. This also stifled the industry, he said.
“The Kentucky Department of Agriculture and Commissioner Ryan Quarles have been a national leader in hemp,” he said.
Since Delta 8 was introduced to the industry, its decline has started to reverse, said Ware.
Reviving the hemp economy was one of the reasons why Sutterfield with Eastern Kentucky Hemp Co. got into the Delta 8 business. But, Sutterfield says he was also motivated by the good he thinks the different parts of the hemp plant can do for the public. The 2018 Farming Bill gave him that opportunity.
“What that did was, companies like ourselves said OK, so here we are, here’s the rulebook. All right, all these cannabinoids are legal, now let’s go on a mission to isolate each and every one of these cannabinoids and get them down to where, you know if we can isolate each cannabinoid, then we can fully research it.”
Sutterfield claims to be one of the first, if not the first, company with ties in Kentucky, West Virginia, Ohio and Tennessee to start producing Delta 8, which he began doing in early 2020.
He considers Eastern Kentucky Hemp Co. to be a research and development business, as well as a hemp processor and seller.
When Sutterfield started selling Delta 8 in his stores, he noticed an almost immediate positive response.
“We had people, you know, driving two, three hours,” said Sutterfield. “Cancer patients, for instance, dealing with these things, you know, dealing with cancer, stuff like that, just being like, ‘This helps better than anything that the doctor’s prescribing. It’s a wonderful, wonderful thing. I’m so happy that this is available.’”
Sutterfield also thinks Delta 8 has the ability to help the farmers and small businesses in Kentucky that are in the hemp business.
Instead, he believes the KDA’s moves against Delta 8 have done the opposite.
Taylor with 502 Hemp moved to host her website to Indiana, which has been friendlier to Delta 8. She also plans to open a hemp store in the state.
Because of hints that the KDA was not going to be supportive of Delta 8, Sutterfield built his Delta 8 operations out of state. And, on June 15, the Kentucky State Police raided Sutterfield’s shop in Morehead. He claims they took tens of thousands of dollars worth of product off the shelves and $1,000 cash.
A police report from the KSP, sent after this article published, reported that police seized 1 gram of “marijuana” from the store, with a value of $46.25. The KSP suggested preliminary charges of marijuana trafficking in an amount less than eight-ounces, a class A misdemeanor.
An attorney for the Kentucky Hemp Association, Chris Wiest, told WFPL on July 21 that law enforcement agencies in Kentucky have raided five stores selling Delta 8 since April. The Kentucky State Police provided LEO with records of two raids and said that the agency had assisted Casey County law enforcement with another Delta 8 investigation.
So far, Sutterfield hasn’t faced any formal charges, but his bank accounts remain frozen, forcing him to deal in cash only, all while attempting to open a new store in Ohio, he said. Sutterfield’s Morehead store just recently opened again after having to be closed for almost one month, according to the business owner.
“Honestly, it really is so upsetting, you know, because Kentucky was the pilot program for the federal program, right?” said Sutterfield. “ Kentuckians were like, ‘Oh my gosh, you know, we’re going to be on the forefront of this industry. We’re going to be the industry’s leaders in research and development, and it’s going to be great, you know?’”
Instead, said Sutterfield, the state government is killing the local hemp industry.
Sutterfield also said he would be open to more regulations for Delta 8 products.
“No legitimate business or professional business is going to mind at all to provide toxicology and microbial reports, ensuring that the distillate used in the creation of these products are free of any chemicals or solvents that they’re worried about,” he said.
The KDA compared creating regulations for Delta 8 to flouting state law, which the department says does not support the legality of the product.
Sutterfield has an analogy that he thinks highlights how inflexible the KDA is being: If someone found mold on bread at the grocery store, would the government try to ban it?
“Or, are they going to come through and put in regulations to where all companies producing bread have to make services up to a certain standard?” he said. •