The public can currently buy a form of unregulated, untested, intoxicating cannabis extract at gas stations and smoke shops across Michigan, but that may soon be coming to an end.
It’s called delta-8 THC, a cannabis compound similar to delta-9-THC, the component in marijuana that’s traditionally associated with the plant’s psychoactive effect.
Except, the legal definition of marijuana under Michigan law doesn’t mention delta-8, which has begun to gain popularity over the last year due to confusion over who regulates it and whether it’s legal.
Delta-8 often comes in an oil form, usually in pre-packaged cartridges that are inhaled using vaporizing devices, but also in tinctures and edibles, like gummy candies. Beyond Michigan’s brick-and-mortar retailers, it’s readily available to order online.
The House Regulatory Reform Committee on Tuesday, May 4, took up a series of bills that would give Michigan’s Marijuana Regulatory Agency the power to oversee all forms of THC, including delta-8.
During the hearing, state Rep. Pat Outman, R-Six Lakes, compared the delta-8 phenomenon to the “spice” and “bath salts” scare that emerged nearly a decade ago.
“It really reminds me of that, kind of these sketchy substances that are working their way into gas stations and other retail places,” he said. “And there’s just no consumer protections or any sort of regulatory structure.”
But the current trend is a little different. Delta-8 THC comes from the cannabis plant through an extraction and refining process. It’s origin is clear, whereas bath salts and spice were an array of laboratory-synthesized chemicals that gave users effects similar to certain street drugs while initially evading regulation.
The Michigan Poison Center at the Wayne State University School of Medicine in April issued a public warning regarding an uptick in accidental use of delta-8 THC reported by poison centers across the nation due to delta-8.
The products are often sold using “misleading packaging” and may be mistaken for CBD products, the Michigan Poison Center said. “Products containing delta-8 THC are sold in vape shops as vaping liquids and gummy supplements and are marketed as a ‘legal high.’”
Michigan regulates cannabis under two separate agencies and product segments: there is traditional high-inducing marijuana sold under strict state supervision by the Marijuana Regulatory Agency; and then there’s “industrial hemp,” which is also derived from a cannabis plant variety, but regulated by the Michigan Department of Agriculture and Rural Development. Hemp by definition contains negligible amounts of delta-9 THC, less than .3%. Delta-8 is usually produced from hemp, thereby avoiding Marijuana Regulatory Agency oversight.
Marijuana Regulatory Agency Director Andrew Brisbo, who supports regulation by his agency, said delta-8 “occurs in minor amounts” naturally within cannabis, but “it’s almost certain that anything that’s available at the commercial level now is synthetically derived through an isomerization process.”
Brisbo said the Marijuana Regulatory Agency is currently allowing select marijuana growers and processors to manufacture delta-8 for research purposes so the agency can create a safety framework and standards for future possible legal production.
The Michigan Cannabis Manufacturers Association trade group has pushed for some regulatory changes that would ensure delta-8 manufacturers would have to adhere to the same regulations and testing requirements followed by marijuana industry licensees.
“Recently, individuals in nonregulated labs have developed intoxicants ... that mimic the high of cannabis but because they’re not listed in the (Marijuana Regulatory Agency’s) formulary regulated compound, delta-9-THC, these products are unscrupulously sold in the open marketplace and are available to anyone,” said Steve Linder, a spokesman for the Michigan Cannabis Manufacturers Association who testified before the Regulatory Reform Committee on Tuesday. “You can find them in gas stations, in party stores, smoke and vape shops. Because they’re not illegal, there’s no way to enforce their safety, nor their purity.”
Linder said a dozen states have temporarily banned delta-8: Alaska, Arizona, Arkansas, Colorado, Delaware, Kentucky, Idaho, Iowa, Mississippi, Montana, Rhode Island and Utah.
His organization supports subjecting delta-8 and any “derivative of cannabis” with an intoxicating effect to the same testing and regulatory standards as marijuana.
Robin Schneider, director of the Michigan Cannabis Industry Association, another marijuana trade organization, said her group’s members have diverse opinions regarding delta-8, ranging from a proposal to enact no regulation over delta-8 to recommendations of a full ban. Most members, however, agree that the Marijuana Regulatory Agency should be in charge of whatever regulations are enacted, Schneider said.
Sarah Noon of the group Students for Sensible Drug Policy also expressed support for the marijuana bills.
“I know that I showed up at a gas station and I saw,” she said when asked if delta-8 is popular among minors. “I can’t speak for all youth, but I do know people around my age who have seen this product, who have taken it home, who have used it and it works, but it’s also not regulated and it has the potential to be abused.”
An example of delta-8 cannabis distillate. Photo courtesy of Dr. Fabio Rodi, CEO of Icon Processors.
Unlike marijuana, hemp won’t likely get someone high and is intended for uses derived from the plant fibers, products such as bioplastics, textiles, animal feed, fuels and other applications. Another popular use for hemp is CBD, which is another extracted cannabis compound that is thought to have therapeutic value without psychoactive effects.
Michigan launched a popular hemp farming pilot program in 2019, “but not everyone was able to sell” their crop and products, said Dave Crabill, a spokesman for the hemp farming trade group iHemp Michigan and a hemp farmer himself.
While Crabill is optimistic about the future of industrial hemp, he said some farmers and processors are looking for alternative ways to sell off their harvest, which has contributed to the emergence of delta-8. Because it’s derived from legal hemp, Crabill said it’s a gray area that some processors and farmers are taking advantage of.
Delta-8 is “the product with the highest value right now,” Crabill said. “Everyone that is in the market is going in understanding that it’s a short-lived game that makes some profits in the meantime.”
CBD prices declined nearly 17% nationwide in 2020, according to Leafreport, an online publication that tracks the CBD industry.
Dr. Fabio Rodi, CEO of Icon Processors, a company with locations in Washington Township, Michigan and Vermont that specializes in hemp extraction, often CBD, said he regularly receives requests from producers to extract delta-8.
“I was like, no,” he said, “because I think here pretty soon the FDA and a lot of these people are going to come down on that and I don’t want to be known as that lab that just strictly makes delta-8, because I feel you’re going to get shut down in a sense.”
Rodi said some marijuana users prefer the effect of delta-8 THC versus delta-9, because it’s “not as potent.”
“Delta-8 is like getting drunk off wine or beer,” he said. “When I’ve been speaking with people, they kind of like it because it gives you that nice, calm, mellow, little slight buzz and a lot of people like to use it to go to bed.”
The process of extracting delta-8 can be dangerous due to the use of volatile chemicals and solvents that can also leave trace residue that is harmful to a user’s health, Rodi said.
The Regulatory Reform Committee has not yet voted on whether to present the delta-8 legislation to the full House for further consideration.
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