Delta-8 THC rise prompts push for hemp oversight in Oklahoma

Producers of hemp byproducts like THC-O-acetate, delta-8 vape cartridges and edibles are using a legal loophole in the 2018 Farm Bill to make products with similar effects to marijuana while avoiding the regulations, authorities say.

The director of the Oklahoma Medical Marijuana Authority said earlier this week that the agency hopes to see legislation regulating hemp, specifically hemp byproducts, in the next legislative session.

“Right now, I don’t know that consumers always know what they’re purchasing when they buy these products. Oftentimes, it’ll say hemp on the label,” OMMA Director Adria Berry said. “So people might think it’s not something that’s gonna get them high, when in fact, it really could get them high.”

Hemp has industrial uses — in highly durable textiles, biodegradable plastics and cosmetic oil — and is the same species of plant as marijuana. The difference between hemp and marijuana is in the amount of THC: the psychoactive cannabinoid that causes a high. Cannabis plants with less than 0.3% THC potency by dry weight are considered hemp. Any cannabis plant exceeding that THC potency is classified as marijuana, which under federal law is an illegal substance.

The main nonintoxicating cannabinoid found in hemp can be chemically altered to create THC products like delta-8 and THC-O-acetate.

“The Department of Agriculture already regulates hemp that is used for industrial purposes, and even for CBD purposes,” said Berry. “But where the regulatory gray area begins is when it’s changed from basic CBD into these intoxicating products. So that’s where we need clarity.”

THC analogues like delta-8 can be put in consumer products without the age restrictions or package warnings that are placed on regulated marijuana.

“We want to ensure that consumers are protected by requiring testing, proper packaging and labeling,” Berry said.

Hemp plants are exposed to a solvent and a strong acid to create the THC analogues, which need to be cleaned to prevent solvents and acids from being in the final product. The unregulated nature of these products means cleaning is not guaranteed, Berry said.

“If solvents were used, consumers would want the product to have gone through a rigorous testing schedule to ensure that no solvents are remaining on that product,” she said. “If there are solvents remaining on it, then you are inhaling those into your lungs or you are eating them and putting them into your body or applying them topically.”

Rep. Scott Fetgatter, R-Okmulgee, has been working on cannabis regulations since medical marijuana was legalized in Oklahoma. He pointed out he has put forward variations of a bill to regulate hemp products for the past three legislative sessions. The first attempt was House Bill 3786 in 2020.

“I mean, it’s federally legal, so they can sell it on the internet, too,” said Fetgatter. “And so there’s got to be some laws that we put on delta-8 that deal with testing and those kinds of things.”

The barrier for growing hemp in Oklahoma is low, compared to the process for growing marijuana. A grower must be 18 years old and submit an application and fee to the Oklahoma Department of Agriculture, Food, and Forestry (ODAFF). The application requires a criminal history report for each key participant in the business and proof of ownership or the lease for the area in which the hemp will be grown.

ODAFF regulates hemp to verify the product is under the legal limit for THC (0.3% by dry weight) and, for hemp that will be used to make CBD products, there are pesticide restrictions and safety checks for fungal contamination or levels of heavy metals in the plant.

If the CBD is converted to delta-8 THC (or any THC analogue, as long as it isn’t delta-9 THC), ODAFF has no regulatory authority over the resulting products.

One basic concern, besides the health concerns of unregulated products, is lack of labeling requirements. Without regulations, it can be difficult to tell and almost impossible to verify what level of intoxication should be expected from the product.

“They don’t state what the concentration of the product is,” said Kenny Naylor, director of Consumer Protection Services with the Department of Agriculture. “So the person who’s buying it doesn’t know.

“If you go buy marijuana gummy, you know the concentration of the delta-9 THC levels. If you go buy a delta-8 product, for example, you don’t know what the concentration is.”

Other states have attempted to regulate or ban these products and ended up being sued. Arkansas, Maryland, Indiana, Virginia and most recently, Alaska have faced lawsuits over the constitutionality of regulating or banning hemp products that were made legal by federal law.

“I mean really the federal government needs to get their act together on all this stuff,” said Fetgatter. “It would free the state to be able to do the things that they need to do.”