WSLCB - Webinar - Advocacy and Rulemaking
(November 12, 2020) - Delta-8-THC

During discussion following her presentation, WSLCB Policy and Rules Manager Kathy Hoffman revealed she was authoring an interpretive statement regarding Delta-8-Tetrahydrocannabinol (Delta-8-THC) which, if implemented, may distill out unanticipated consequences.

• Responding to a question about other agencies WSLCB was “working directly with,” Hoffman pivoted to describe “some of the concerns” around Delta-8-THC and “the conversion of [cannabidiol] CBD to THC” (audio - 4m).
  • After recalling a previous federal collaboration, Hoffman drew attention to “some draft rules” on Delta-8-THC from the U.S. Drug Enforcement Administration (DEA). She claimed, “in Washington state, Delta-8 is considered a synthetic” cannabinoid and “under the Controlled Substances Act it is therefore prohibited.” Hoffman noted “it sounds like the DEA has come down” to a similar conclusion which would “support what our statute says.” Hoffman said the interpretive statement was the first document she’d authored for WSLCB dealing with “the existence of Delta-8,” adding that “since it is a synthetic...we don’t want to see that in our system.”
  • Hoffman’s interpretation, which had not been previously disclosed, would precipitate a substantial policy change at WSLCB if carried through.
• Cannabis Observer obtained a set of WSLCB emails from September which mentioned Delta-8-THC and hinted that a policy interpretation was in the works regarding the THC isomer.
  • On August 26th, OZ. retail licensee Bob Ramstad sent an email to WSLCB’s Policy and Rules team and WSLCB Licensing Program Specialist for Label Approvals Susan Harrell asking for guidance on a marijuana infused edible (MIE) product sample “having 25mg of...delta-8 THC” which the vendor had claimed was “therefore not subject to the per piece vendor limit of 10mg THC.” The MIE was a Smokiez product, a multi-state brand manufactured in Washington by tier 1 producer/processor Pacific Northwest Consulting, LLC (License #417152, UBI 603350861).
    • At publication time, WSLCB’s list of “Approved Infused Products” included 32 varieties of Smokiez Fruit Chews approved on February 4th, 16 formulated as “Delta 8 250mg THC 10mg CBD - 10 servings” and the other 16 as “THC 100mg Delta 8 100mg CBD 10mg - 10 servings.”
  • On August 31st Ramstad followed up, and Hoffman then forwarded his email to a WSLCB Enforcement and Education customer service address asking, "Can someone reach out to this person and offer assistance?" In a subsequent internal exchange prior to responding to Ramstad, Hoffman admitted, “it’s a really, really complex concern that we’re working on, actually.” Policy and Rules Coordinator Casey Schaufler responded to Ramstad later that day to indicate the agency had received his inquiry and staff were “continuing to look into this.” Schaufler consulted on next steps with Hoffman via chat, who replied, “this is an emerging area for sure - I am not sure if [WSLCB Chemist] Nick [Poolman] has shared his concerns with enforcement yet, but it’s good to get it on their radar this way.”
  • Hoffman went on to claim, “It’s not clear whether Bob is making a formal complaint or asking us for a position on Delta 8.” After Ramstad replied to ask if the product was “reviewed by LCB and approved,” Schaufler thought he was asking for the agency’s position. But Hoffman felt that “the interesting thing is the detail in the message, manifest numbers, etc that move into complaint territory. His follow up email is going there.” The next day (September 1st), Enforcement and Education customer service staff interpreted Ramstad's email forward from Hoffman as a complaint against Pacific Northwest Consulting.
  • Harrell was out of office until the following day (September 2nd), and promptly reported that, “I reviewed and approved in error. I went back through all the Delta 8 mails with the MJ Examiners from September 2018 and although their initial decision was that Delta 8 was not derived from Delta 9 their final decision was that it is therefore would need to comply with WAC. No more than 100mg Delta 8 per package and not more than 10mg per serving same as with Delta 9.” Harrell and WSLCB Compliance and Adjudications Manager Nicola Reid were unsure what their next steps should be with regards to the approved products in the marketplace, but Reid felt “we could work through that when we move to revoke with the [Attorneys General].”
  • Later that day, Harrell proactively reached out to Smokey Point Productions Marketing Manager Ryan Simrock to say, “I would like to schedule a time to discuss your products that contain Delta 8.”
  • Then, she followed up with Ramstad to say “Delta 8 is allowed in products in i502 stores. It is my understanding Delta 8 is derived from Delta 9 therefore will need to follow all applicable rules.” Ramstad followed up to ask what that meant, and Harrell replied, “After reviewing WAC 314-55-095, Delta-8 which appears to be a derivative of delta-9 THC and psychoactive would need to adhere to the limits specified in this section. According to WAC 314-55-095, no single serving can exceed ten milligrams of active tetrahydrocannabinol (THC), which would apply to delta-8.”
  • The next day (September 3rd), Cannabis Examiners Manager Kendra Hodgson and Poolman received an inquiry from Confidence Analytics Director of Operations Pat Reynolds after he saw Ramstad post Harrell’s statement on a message board. “Based on that,” he said, “it would appear that some guidance for labs is needed on this topic? We do not combine our delta-8 numbers with delta-9 numbers because there is nothing in the WAC that says we need to. However, the WAC was written before delta-8 was an issue.” He added, “And what about delta-10? To my knowledge there’s not even a quantitative standard available for delta-10, just a qual[itative] one.” Five days later on September 8th, and after getting up to speed on recent agency messaging, Poolman replied to say, “No changes are required of the laboratories at this time.”
  • Also on September 3rd, Harrell proactively reached out to Bill Thompson “regarding your product lines that contain Delta 8.” At publication time, Cannabis Observer was unable to identify Thompson’s affiliation.
  • At this point, a substantial gap in our interpretation intercedes. At publication time, Cannabis Observer’s public records request on this subject remained open, with the next installment of responsive records expected on November 19th. However, one last record was provided from the end of September which included notes from a weekly meeting of Enforcement and Education Division Marijuana Unit Lieutenants to whom Poolman provided a “Delta-8 Update.” In addition to warning to be on the lookout for Delta-8-THC products in vapor retail stores or gas stations, the notes indicate Poolman was under the impression that “one producer/processor is selling that is exceeding limit” and remained concerned about conversion of “CBD into Delta 8.” He conveyed the agency’s intention to file an interpretative statement with the Washington State Office of the Code Reviser, but the notes indicate “Rules is busy dealing with COVID related, so this will have to wait.”
• Delta-8-THC was already on the agency’s agenda before late August: one year prior, the isomer was listed in an early version of the Quality Control (QC) Testing and Product Requirements draft conceptual rules.
  • In August 2019, the QC draft conceptual rules included a new requirement at WAC 314-55-102 (3)(a)(iii) in the “Potency Analysis” section describing the standard battery of cannabinoid concentration calculations conducted by testing laboratories: “Any psychoactive cannabis derivative intentionally added to the formula of a product must be tested for potency, including but not limited to delta-8.”
  • Whereas in the newer proposed QC rules up for a public hearing on November 18th, that language had been subsequently modified to read: “Any psychoactive cannabinoids intentionally added to the formula of a product must be tested for potency.”
• In the fall of 2019, the WSLCB Cannabis Potency Tax Work Group made note of Delta-8-THC in its report which may have been read by key legislative staff.
  • Washington Traffic Safety Commission (WTSC) Legislative and Media Director Shelly Baldwin represented the WTSC at the majority of the work group’s meetings, and asserted that Delta-8-THC was a blind spot in Washington statute and WAC.
  • In the work group’s final report for the Legislature which dispensed with the notion of taxing cannabis by concentration, mention of Delta-8-THC garnered inclusion (p. 7): “It should be noted that, while delta-9 THC is the most prevalent cannabinoid and intoxicant in the cannabis plant, there are other cannabinoids, for example delta-8 THC, that potentially contribute to the effects or potency of the cannabis plant.”
  • Statutory ambiguity around the THC isomer was not missed by key legislative staff as indicated during Washington House Commerce and Gaming Committee (WA House COG) Staff Counsel Peter Clodfelter’s presentation during the Committee’s September 15th work session. Clodfelter reviewed trends in testing, labeling, and taxation of cannabinoid concentrations in other legal states, showing THC/CBD testing and labeling were very common. He observed other states were “defining THC very broadly as to include all the possible THC that could be in the product” (audio - 10m, video).
• But is Delta-8-THC a “synthetic cannabinoid” only producible through transformation of CBD? While we aren’t scientists nor lawyers at Cannabis Observer, we sought out additional perspectives.
  • Isomerization. From what we can tell, isomers of a molecule contain the same constituent elements in slightly different configurations. Delta-8-THC “has the same chemical formula as Delta-9-THC” but “one of its carbon-carbon double bonds is located in a different position.” It’s our understanding that Delta-8-THC shows up frequently in Delta-9-THC distillates either intentionally or unintentionally as a result of heating processes. Rather than requiring a complicated synthesizing process to transform precursor molecules into Delta-8-THC, isomerization of Delta-9-THC to Delta-8-THC may just require heat. Conversion of CBD to Delta-8-THC and Delta-9-THC appears to be a slightly more complicated process which has been patented for some time by none other than Raphael Mechoulam.
  • Prevalence. The potential presence of Delta-8-THC in distillates added to many cannabis vapor and edible products---intentionally or not---may indicate that the isomer is widespread in the 502 marketplace. Complicating matters, it’s our understanding that there may be variability in the capacity of cannabis testing labs to reliably detect and/or identify Delta-8-THC, which may result in misinterpretation and misreporting as other cannabinoids.
  • Prohibition. It’s clear, so to speak, that Delta-8-THC is a cannabinoid deserving of incorporation into the statutory and regulatory frameworks which have carved out room for the 502 marketplace to flourish alongside the on-going prohibition of cannabis still encoded at the federal and state levels. It’s concerning to consider the State may be inclined to ban the latest cannabinoid to come to the attention of regulators without fuller consideration of what that cannabinoid is, how it comes to be, its true prevalence in the marketplace, and its purported pharmacological and medicinal effects. Prohibition should be a tool of last resort. Perhaps a slightly different configuration of constituent laws and rules would produce more beneficial effects.

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