The California legislature passed a bill that would prohibit anyone in the state from using delta-8 tetrahydrocannabinol, or THC, a chemical found in marijuana. Not only that, but the bill also created a trafficking and manufacturing task force to go after any marijuana dispensaries that sell the chemical in any form.

There is a bill in California called SB 813, and its title says it all:  “An act to amend Section 11018.3 of the Health and Safety Code, relating to medical marijuana use.” It is a bill that would change the law in California to allow for individuals to purchase and use marijuana for medicinal purposes. If passed, this bill will allow individuals to grow up to 6 mature plants and up to 12 immature plants under their residence. The bill also allows for licensed growers to sell to patients. The bill also requires the state Department of Public Health to develop rules and regulations for licensing and regulating regulated medical marijuana facilities. If the bill passes, it will need the Governor of California’s signature to be enacted.

Delta-8 tetrahydrocannabinol (THC) is synthesized in the plant Cannabis Sativa, specifically in the Cannabis Sativa L. plant. It is used to alleviate pain, nausea, and certain types of epilepsy. Delta-8 THC is the most potent form of THC, and it can also be found in low-potency extracts of the plant. Because Delta-8 THC is so potent, it should not be smoked, but rather the whole plant should be used in a vaporizer or other delivery device.

The proposed legislation would likely prohibit cannabis products from containing more than 0.3% of any type of THC, including delta-8. This would result in a very small or non-existent market for these products.

For a state that pioneered medicinal cannabis and was relatively early to introduce recreational cannabis (cannabis here refers only to marijuana, not hashish), California is one of the worst states in the union when it comes to reasonable CBD policies for cannabis. It should come as no surprise, then, that in the legislation to legalize CBD (AB-45 and SB-235), the state is now hitting delta-8 THC.

Before I explain what the fate of Delta-8 might be, let me briefly address how California mishandled the CBI:

  • 2018 : In July 2018, the California Department of Public Health (CDPH) published frequently asked questions on its website, taking the position that CBD ingestion is illegal (see my analysis of these frequently asked questions here). In the years since (according to an analysis of AB-45), CDPH has issued 13 notices of violation, 7 letters of voluntary condemnation and destruction, and 9 embargoes – all without any real regulation! Local health departments have also been active in implementing the law.
  • 2019 : California tried to pass AB-228, which would have legalized CBD, but failed.
  • 2020 : California attempted to pass AB-2827 and AB-2028, which sought to legalize CBD.
  • 2021 : AB-45 and SB-235 are approved by the California House and Senate, respectively. I have briefly described these bills here and here.

Photo by Christina Winter via Unsplash

The second of these links above describes the provisions of these bills that would ban all cannabis-based smoking products. I think these bills are unlikely. This is partly due to the ban on smoking cannabis, which has provoked a strong industry response and significantly limited the market for state-grown cannabis, and partly due to policy reasons and opposition from the cannabis industry and other organizations.

But there is another feature of these two bills that does not seem to have been analyzed in detail yet, and that is delta-8 (and delta-10) tetrahydrocannabinol. If the bill passes in its current form, it could mean the end of Delta-8 in another jurisdiction.

Many people don’t understand the difference between the different forms of THC, so I’ll give you a brief summary. Delta-9 THC is the main cannabinoid in marijuana (called cannabis in California, although cannabis technically includes hashish). Delta-8 and delta-10 are also cannabinoids found in marijuana and cannabis, but mostly naturally present in very small amounts.

It was the Delta-8 that took off in the country recently. Like Delta-9, it is intoxicating, but to a lesser degree. Since it is not normally present in large quantities in hemp, it is usually obtained by converting the CBD in hemp through chemical processes. This means that there is a large market in California for cannabis biomass that can be used to produce Delta-8.

Photo by Jeff W via Unsplash

The problem is that the proposed bills define THC as delta-8, -9 and -10. Even more problematic, manufacturers of hemp products must certify that the raw extract they use contains no more than 0.3% THC. There are certainly some ambiguities here, but they will likely be addressed in the final draft or ordinances. Therefore, we expect cannabis products to contain no more than 0.3% of any type of THC, including delta-8. This would result in a very small or non-existent market for these products.

An even greater challenge based on this new definition is that it changes the standard for testing total THC, including all forms of THC. In short, the state and federal government mandates testing to determine the THC content of cannabis at 0.3% or higher by determining THC plus converted THC acid (THCA), which is converted when exposed to heat. There are various ways of doing this, but the bottom line is that cannabis containing, say, 0.29% THC can exceed the legal limit if it contains a certain amount of THCA. Since the determination of THC now includes all forms of THC, the test may be even more difficult to perform (even though delta-8 and -10 are usually expressed in very, very small amounts).

As I said before, I think these bills are unlikely. But it will be interesting to see if they are adopted unchanged and how state and local regulators will decide how to handle the situation. For more information, stay tuned to the Canna Law Blog.Delta-8 is a synthetic form of the naturally occurring cannabinoid THC. Delta-8 is the most common type of synthetic THC, and is used both medically and recreationally. Delta-8 has a similar effect to THC in the brain, but does not produce the psychoactive effects that come with high THC levels. For those who would like to try cannabis, the use of Delta-8 could be a way to do so without the feeling of being high.. Read more about delta 8 gummies and let us know what you think.

Frequently Asked Questions

Is Delta 8 being banned?

No, Delta 8 is not being banned, but it is being restricted. What is the difference between being banned and being restricted? Banned means that you are not allowed to play on the server. Restricted means that you are not allowed to play on the server, but you can still play on other servers. Can I still play on Delta 8? Yes, you can still play on Delta 8, but you will not be able to use any of the new features.

Delta 8 is legal in the United States.

How do they make Delta 8 THC?

Delta 8 THC is made by extracting the THC from cannabis flowers, then adding an ethanol solvent to the extract. The ethanol solvent evaporates and leaves behind the pure THC.

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