This Drug Gets You High, and Is Legal (Maybe) Across the Country
A once-ignored derivative of hemp has become a hot seller for people looking for a loophole around marijuana laws.
Hemp buds at the Hometown Hero CBD manufacturing facility in Austin, Texas. Credit. Tamir Kalifa for The New York Times
- Feb. 27, 2021
Texas has one of the most restrictive medical marijuana laws in the country, with sales allowed only by prescription for a handful of conditions.
That hasn’t stopped Lukas Gilkey, chief executive of Hometown Hero CBD, based in Austin, Texas. His company sells joints, blunts, gummy bears, vaping devices and tinctures that offer a recreational high. In fact, business is booming online as well, where he sells to many people in other states with strict marijuana laws.
But Mr. Gilkey says that he is no outlaw, and that he’s not selling marijuana, just a close relation. He’s offering products with a chemical compound — Delta-8-THC — extracted from hemp. It is only slightly chemically different from Delta 9, which is the main psychoactive ingredient in marijuana.
And that small distinction, it turns out, may make a big difference in the eyes of the law. Under federal law, psychoactive Delta 9 is explicitly outlawed. But Delta-8-THC from hemp is not, a loophole that some entrepreneurs say allows them to sell it in many states where hemp possession is legal. The number of customers “coming into Delta 8 is staggering,” Mr. Gilkey said.
“You have a drug that essentially gets you high, but is fully legal,” he added. “The whole thing is comical.”
The rise of Delta 8 is a case study in how industrious cannabis entrepreneurs are pulling apart hemp and marijuana to create myriad new product lines with different marketing angles. They are building brands from a variety of potencies, flavors and strains of THC, the intoxicating substance in cannabis, and of CBD, the nonintoxicating compound that is often sold as a health product.
With Delta 8, entrepreneurs also believe they have found a way to take advantage of the country’s fractured and convoluted laws on recreational marijuana use. It’s not quite that simple, though. Federal agencies, including the Drug Enforcement Administration, are still considering their options for enforcement and regulation.
“Dealing in any way with Delta-8 THC is not without significant legal risk,” said Alex Buscher, a Colorado lawyer who specializes in cannabis law.
Still, experts in the cannabis industry said Delta 8 sales had indeed exploded. Delta 8 is “the fastest growing segment” of products derived from hemp, said Ian Laird, chief financial officer of New Leaf Data Services, which tracks the hemp and cannabis markets. He estimated consumer sales of at least $10 million, adding, “Delta 8 has really come out of nowhere over the past year.”
Marijuana and hemp are essentially the same plant, but marijuana has higher concentrations of Delta-9 THC — and, as a source of intoxication, it has been a main focus of entrepreneurs, as well as state and federal lawmakers. Delta 8, if discussed at all, was an esoteric, less potent byproduct of both plants.
That changed with the 2018 Farm Bill, an enormous piece of federal legislation that, among other things, legalized widespread hemp farming and distribution. The law also specifically allowed the sale of the plant’s byproducts — the only exception was Delta 9 with a high-enough level of THC to define it as marijuana.
Because the legislation made no mention of Delta 8, entrepreneurs leapt into the void and began extracting and packaging it as a legal edible and smokable alternative.
Precisely what kind of high Delta 8 produces depends on whom you ask. Some think of it as “marijuana light,” while others “are pitching it as pain relief with less psychoactivity,” said David Downs, senior content editor for Leafly.com, a popular source of news and information about cannabis.
Either way, Delta 8 has become “extremely ascendant,” Mr. Downs said, reflecting what he calls “prohibition downfall interregnum,” where consumer demand and entrepreneurial activity are exploiting the holes in rapidly evolving and fractured law.
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Marijuana is federally illegal. But what if you could get high off hemp?
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LiftedMade's Urbrocks use compliant THC made from hemp.
Courtesy of Liftedmade
Last month, Wisconsin-based company LiftedMade launched a new kind of weed product: a THC-infused flavor-popping crystal candy, called Urb Rocks. Like most other THC products, it will get you high. Unlike other products, though, the THC in Urb Rocks is sourced from hemp, which means it’s technically legal for sale in most states.
LiftedMade is selling Urb Rocks, along with other hemp and hemp-derived products, online for sale nationally. CEO Nick Warrender says the company wants to make cannabis products accessible to consumers who don’t have local access to legal weed. And, he says, “Our goal is also to make it more affordable for people that might not be able to afford to use cannabis on a daily basis.” At $5.99 for 15 mg of THC, the price is well below what marijuana-derived THC costs in most legal states.
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The difference between cannabinoids derived from hemp or marijuana is a technicality — but it could have serious legal ramifications. Hemp and marijuana are classified botanically as the same plant, Cannabis sativa ; the distinction between the two under U.S. law is in the amount of the cannabinoid known as THC, which is the plant’s psychoactive component. Under the Farm Bill passed by Congress in December of 2018, legal hemp contains 0.3 percent or less THC, while marijuana contains more than .3 percent THC. Hemp won’t get you stoned, or so the thinking goes.
When the Farm Bill legalized the cultivation and sale of hemp and hemp-derived products under federal law, farmers and manufacturers mostly focused on extracting cannabidiol, or CBD, from hemp, expecting to rake in the profits . However, the surge of interest in hemp led to a glut of hemp-sourced CBD production, accompanied by a drop in price. Partly due to the abundance of cheap hemp, enterprising cannabis businesses found a cost-effective method of producing a lesser-known cannabinoid called Delta-8-THC from hemp-sourced CBD. Delta-8, a less-potent cousin of Delta-9-THC, or “regular” THC, offers a mild, functional high, according to many consumers.
The quasi-legal loophole of extracting Delta-8-THC from hemp gave rise to an entire industry of Delta-8 products sold around the country by companies like LiftedMade , which offers hemp-derived Delta-8 gummies, chocolate, flower, concentrates, and vape cartridges for sale online. “A huge expectation of people with CBD was feeling something, and Delta-8 provides that,” Warrender told Rolling Stone earlier this year. (Earlier this month, the FDA and CDC both issued warnings about potential negative health effects of Delta-8 products.)
Warrender is confident that the company has met the requirements to sell hemp-derived THC legally across the country. “Urb Rocks are a 6-gram product, so you’re talking 6,000 milligrams of total dry weight,” Warrender says. “Fifteen milligrams of THC in 6,000 milligrams of product comes out to 0.25 percent.”
So, since each packet of Urb Rocks contains less than 0.3 percent THC on a dry weight basis, it complies with the provisions laid out in the Farm Bill. Warrender also points out that since Urb Rocks dissolve in the mouth, they’re a sublingual, not an edible, and therefore potentially less subject to FDA scrutiny. “We wanted to go towards the sublingual route, which seems to be more accepted,” he says.
LiftedMade seems to have found a way around federal marijuana laws with its hemp-sourced Delta-9-THC product — for the time being, at least. However, there will be plenty of developments around hemp-sourced cannabinoids to follow as they receive increasing attention from law enforcement and regulators across the country. For example, Washington State regulators recently banned the processing of CBD into Delta-9-THC, and Delta-8-THC has been prohibited or restricted in 18 states.
Andrew DeAngelo, a strategic advisor and consultant to the cannabis industry, says the feds will regulate all hemp-sourced cannabinoids at some point. “It just takes a long time for the FDA to figure out what to do when these things happen,” he says. “I don’t know how they’ll regulate it. Nobody can predict what the federal government’s going to do. My experience is that the spirit of the Farm Bill is not to extract THC from [hemp].”
Andrea Golan, a regulatory compliance attorney for hemp and cannabis companies, says that while she applauds the creativity of innovative consumption methods like Urb Rocks, there may be a potential issue with some state laws. She says that including an age gate for e-commerce to ensure that minors aren’t purchasing products online would be wise. (LiftedMade doesn’t currently have an age gate in place.) As far as federal regulation goes, Golan says the FDA states that you can’t sell a food or dietary supplement containing THC or CBD because those cannabinoids are active ingredients in FDA-approved drugs. However, the FDA has been chiefly focusing on ‘disease claims,’ Golan says: “The way the agency has been regulating is really when companies make egregious claims like ‘this product cures epilepsy, or cancer, or Alzheimer’s.’”
Urb Rocks make no such assertions — the strawberry-lemonade and ‘blue razz’ flavored crystals are intended for recreational use by consumers who enjoy the feeling of a THC buzz. An examination of a certificate of the laboratory analysis, or COA, shows a 0.3 percent THC threshold in Urb Rocks. The lab that produced the COA for Urb Rocks confirmed the results to Rolling Stone, noting they only tested for cannabinoid potency; there were no results for terpenes, solvents, or heavy metals listed. Golan explains that some states may only require cannabinoid testing, but many states also mandate testing for pesticides and require that COAs be made accessible to consumers. (LiftedMade links to its product COAs on its website .)
Nick Jikomes, director of science and innovation for the cannabis platform Leafly , is intrigued by the science behind Urb Rocks. “I like the sublingual approach — putting something under the tongue will be a faster onset than a traditional edible,” he says. As far as the legality of the product goes, Jikomes says, “If I were running the business, I’d double and triple check with lawyers, because at the end of the day, a lot of this stuff is up for interpretation — but it’s interesting to start with hemp and get Delta-9.”
LiftedMade plans to release more hemp-derived Delta-9-THC products like energy shots and gummies in a new partnership with a company called Savage Enterprises. The whole enterprise is under the umbrella of the newly-minted LFTD Partners, Inc., which invests in companies that manufacture hemp-derived cannabinoids as well as plant-sourced kratom and kava products. Warrender is confident that Urb Rocks will have a massive impact on the hemp and cannabis industry. “It’s imperative to stay innovative if we want to keep growing,” he says. “And we think that this product could take the cake on anything that’s been launched until now. We look forward to seeing how that reflects on the financial side.”
Delta-8 THC Is the Next Big Thing in Weed, and We Tried It
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The hot cannabinoid of the moment is Delta-8 THC. It's a psychoactive compound—as in, it gets you high—that's legal in most states. Or, if not legal, then at least widely available. It's in a bit of a gray area.
Understanding why starts with the 2018 Farm Bill, which legalized hemp (or cannabis—it's the same plant) as long as levels of THC remained below a certain very low threshold. This law accelerated the already-booming market in CBD and created a market opening for novelties like weed that doesn't get you high.
The structure of the law—everything hemp is legal except THC—created what's seen by many producers as a loophole that allows the production and sale of Delta-8 THC, because it's ever-so-slightly chemically distinct from the banned Delta-9 THC. As the owner of a Texas CBD company put it to the New York Times: “You have a drug that essentially gets you high, but is fully legal," he said. “The whole thing is comical.”
“Fully” is probably an overstatement. It's not legal everywhere in the U.S., and might not stay legal forever. A few states have opted to ban the drug—including, this week, North Dakota—and the feds are apparently still considering their options. But at the moment, Delta 8 is easy to get delivered in the mail or at a head shop in most states.
It's usually described as particularly mellow high—all of the bodily good feelings, none of the paranoia. But that's what always stoners are always telling you, right? As someone who occasionally enjoys weed but is prone to racing thoughts from even the mellowest indica, the idea was appealing enough to check out.
The delta-8 market is still rough around the edges, and there are reports of all kinds of shady stuff: vape cartridges filled with things you really don't want in your lungs, flower that's been sprayed with weird chemicals, moldy gummies. But I perused the relevant subreddits and picked a company, Lifted Made, whose Urb gummies sounded legit enough.