Delta 8: The Moonshine of Cannabis
America’s farmers legally grow corn and now hemp. These crops are similar in that the valuable parts of each crop are made into a variety of products, including food, beverages, and supplements for use by humans, and as a feedstock for animals. The similarities do not end there; some of the valuable parts of corn and hemp are made into Controlled Substances, like alcohol.
Take moonshine for example. Moonshine is a precursor to whiskey, tasty and highly sought-after, that has a history of being made outside of the normal legal and regulatory systems that oversee the production and distribution of spirits. The corn mash that feeds the stills is indisputably legal. But the production and dispensation of alcohol requires permits for safe manufacture and distribution of end products (Whiskey/Rye/Bourbon). And, of course, it also gets heavily taxed.
A number of excellent brands have opted to go the legal route: fully regulated, quality controlled “moonshine” products with mainstream distillery distribution channels….and yet many folks know someone who can find a way to get some of the old-fashioned ”other” shine. Some even prefer the experience of the renegade products. It is a free country after all, well…sort of.
As cannabis products move from the illegal past into the legal future, confusion remains rampant, especially from the perspective of the consumer. A decade ago, those in cannabis production and distribution were operating in the shadows, akin to moonshiners. But as laws and regulations have evolved, cannabis production has converged with mainstream demand to provide products for legal consumption.
Recently — almost overnight — products containing Delta 8 THC have become popular, showing up in stores, online, and reported on by the industry press.
Products containing Delta 8 THC are made from CBD (cannabidiol) which can be extracted from federally legal hemp. But the production of Delta 8 THC — an analog of Delta 9 THC — is confusing to some.
It does not need to be confusing.
While the Farm Bill provided many advantages with its “liberal” definition of federally legal hemp and its “derivatives, extracts and cannabinoids’’, it did not change either the authority of the DEA to schedule substances like tetrahydrocannabinols or use the Analog Act that creates an equivalency between Delta 8 and Delta 9. In fact, DEA explicitly lists Delta 8 as a Schedule I Controlled Substance under tetrahydrocannabinols (DEA 7370, page 17 of 17).
Ideally, consumers would obtain intoxicating D8 products the same way they legally obtain Delta 9 products: from a state regulated adult use or medical cannabis program that gives quality assurance and includes, sigh, taxes.
Unfortunately, reality is different.
The purpose of legalizing hemp production on America’s farms was not to compete with state regulated adult use or medical cannabis programs.
Psychoactive D8 THC products are ending up in the hands of consumers — of all ages — through the rapid growth of unregulated retail and online sales. How does this happen? It seems that opinions on legality are varied, and some people conclude that D8 is legal: lawyers find loopholes.
The strange, expensive, and convoluted way that some advisors have opined that D8 THC could legally be produced and sold in an unregulated way may expose both the producer and the easily traceable distribution channel (across state lines!) to potential enforcement liabilities.
Renegade D8 THC producers (and consumers) ought to have the same awareness as those who make and partake in moonshine: good stuff, sure. Legal? No, but enforcement is at the discretion of local, state, and federal law enforcement. If the industry has learned anything from the last 6 years through warning letters from FDA and sanctions from FTC, officials are monitoring social media, and mapping the D8 landscape.
So is D8 the moonshine of cannabis?
It seems to be right now. But this will need to change because the present distribution/growth path of D8 puts it in competition with state regulated, taxed, D9 analog products.
Regulators and law enforcement may “crack down” on these products and alter the D8 landscape negatively. Producers will be upset at the poor advice they have received, pay penalties, and be forced to have difficult conversations with their customers.
But how does this end well?
Let’s be honest, it probably won’t.
Time will tell.
The better solution is right in the middle: legislative and regulatory development to have the inclusion of federally legal hemp products — including cannabinoids derived from hemp — as ingredient inputs into state regulated adult rec or medical cannabis programs. The psychoactive products would be properly produced/regulated, and the hemp crop would provide low-cost hemp-derived ingredients to well-qualified legal buyers.
Oh and by the way: If you haven’t tried it, look for some local apple pie moonshine at your local liquor retailer.
