WSLCB - Executive Management Team
(June 9, 2021) - Delta-8-THC Policy in Other States

Delta-8-THC Sold Here Sign
[ Event Details ]

Board members entertained a possible public relations effort around delta-8-THC before they learned what other states had done or were attempting to do to control use of the compound.

Here are some observations from the Wednesday June 9th Washington State Liquor and Cannabis Board (WSLCB) Executive Management Team (EMT) meeting.

My top 3 takeaways:

  • As board members prepared to hear more about cannabinoids synthesized from hemp biomass cannabidiol (CBD), they mentioned the potential for a public relations campaign.
    • In April 2020, licensed cannabis producers publicly voiced fears about the safety and legality of importing delta-8-tetrahydrocannabinol (delta-8-THC) and delta-9-THC synthesized from hemp extracted CBD. In the following weeks, board members started discussing and learning more about the practice.
    • During the EMT meeting, Board Member Russ Hauge told Director of Communications Brian Smith agency representatives couldn’t “chase” all of the “misinformation” on the subject but that he’d appreciated Smith’s media statements on the “plain illegality of delta-9 produced from hemp being introduced into our system.” Hauge was curious whether the “campaign of misinformation that I see happening about what’s going on with delta-8 and delta-9 and what we’re doing about it” would involve “more of a plan to address it.” Smith said his communications team wasn’t “taking delta-8 on” with their full “communications tactics.” As Policy and Rules Manager Kathy Hoffman and her staff had “a lot of work ahead of it on this issue,” he observed, the Communications division at the agency would “be a partner in being able to help carry that message.” Smith had encountered “talk about this, good and bad” from entities in the cannabis industry, though “as far as it reaching the entire general public...I think it’s still got an uphill road to get there where people start thinking about ‘well, what the heck is this?’” Nonetheless, he said the topic was “swirling right now” around the cannabis sector and “was gonna be here a little while.” Smith was optimistic that the work of Hoffman and others would be “a good opportunity to be able to build on that” (audio - 2m). 
    • Board Chair David Postman considered there to be “a lack of good information” on the practice and officials were “all learning as we go along.” From what he’d heard the deliberative dialogue session “sounds like it was terrific” (audio - <1m).
  • Policy and Rules Manager Kathy Hoffman discussed synthesized cannabinoid policies developing in other states.
    • Postman introduced the topic of “what other states are doing” around delta-8-THC, noting that the idea of banning the compound as an additive had been called for during a board meeting earlier that day though he’d heard others ask for “a way to regulate it” (audio - 1m). 
    • Hauge established that he considered there to be “two separate issues” (audio - 2m):
      • “The delta-8 issue, selling stuff in gas stations [or] over the internet is really something that the legislature is going to have to address. The extent to which it’s in our [initiative-]502 stores is something we have responsibility for,” he said, finding that the policy statement had been “since watered down.”
      • “The delta-9 from hemp-based biomass, coming into the system and supplanting cannabis-based biomass,” was a threat that Hauge viewed as “almost existential for the market as we know it now.”
      • Adding that board members had “been instructed it’s not our business to determine what kind of market we have,” Hauge still perceived synthesized delta-9-THC as “a really big deal for everybody who holds a tier 1 or tier 2 producer/processor license.”
    • Hoffman began the presentation by stating there had been some statements reported in the media she considered to be not “factual. There’s a lot of misinformation out there.” She pointed out that claims of “states suddenly banning delta-8” belie that “most states have adopted some form of the federal Controlled Substances Act (CSA) that lists tetrahydrocannabinol, including isomers” such as delta-8-THC and delta-10-THC. “So, this notion that a whole bunch of states are suddenly banning this product” wasn’t entirely true, Hoffman explained. She brought up the deliberative dialogue from June 9th and its “record” attendance which demonstrated there was “great interest” in the subject. Presenting a table reviewing other states’ policies, Hoffman told the board she would cover both “states where legislative bans or regulatory clarifications are currently being considered or have been enacted” in addition to a few “states where delta-8 is included, specifically included, under their controlled substances act.” Hoffman said another challenge for regulators broadly was “whether marijuana and hemp should be separated in statute and regulation” as well as a definition of “isomer and isomerization and synthetics” (audio - 9m). Hoffman next reviewed states where cannabis was available to medical patients only as well as states where it was also available to adults 21 and older (audio - 9m).
      • Alabama - Legislation, which was delivered to the governor April 29th, sought to separate cannabis based on whether it was above or below 0.3% THC but were “still heavily relying” on the definition of THC in the federal CSA.
      • Alaska - Delta-8-THC was specifically listed as a controlled substance already and “a carve out has been made for hemp.”
      • Arizona - Arizona law already defined cannabis inclusive of marijuana and hemp as well as accepting “any isomer of delta-9.”
      • Arkansas - The definition of narcotic drug in state law talks “about anything that’s produced, directly or indirectly, from a substance or vegetable origin or independently by means of chemical synthesis.”
      • Colorado - The CSA in the state gave regulators "very broad statutory authority" which had been utilized on May 14th “to outright ban delta-8.” The law also had exceptions for “what ‘synthetic cannabinoid’ does not mean.”
      • Delaware - State law had “similar language” to other states.
      • Illinois - Legislators sought to define “cannabis” as well as “industrial hemp” as separate products through a bill titled the CBD Safety Act. The state CSA, which “specifically speaks to delta-9-THC,” would expand the definition, a “reoccurring theme" across states.
      • Idaho - State law included a THC definition that matched Washington while being “a little more extensive.”
      • Iowa - Law there included part of the federal CSA.
      • Kentucky - With the “exact same” definition for THC as Washington, agriculture officials there had released guidance for hemp licensees “reaffirming that both the delta-8 was a schedule 1 drug...and therefore prohibited.”
        • On March 25th, House Bill 307 was signed into law further defining cannabis as “all parts of the plant Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant,” and banning all isomers of THC.
      • Michigan - Legislators were working on “active” legislation to “revise definitions extensively” for hemp and “marihuana” including “a carve out” for some products not considered cannabis under law. Legislators were also “moving into speaking towards ‘total THC’” and providing the Marijuana Regulatory Agency (MRA) “very broad rulemaking authority.” This included the power to “ban or prohibit the use of delta-8 if they wished.” She outlined the THC definition under consideration there, noting the “exclusion language” would permit MRA officials to look at cannabinoids "that [do] not have a potential for abuse,” speculating that would include CBD or “products that you might find in food.”
        • Postman asked about Michigan regulator authority to ban delta-8-THC, with Hoffman clarifying that she didn’t believe MRA leaders could under their existing powers “but by broadening the definition of THC” it could “become possible” (audio - 1m).
      • Mississippi - Voters passed a medical legalization measure in 2020 which was ruled invalid by the Mississippi Supreme Court. Their decision voided the citizen initiative process used in the state for two decades and reportedly invalidated “any other ballot initiative measure that has been passed since the state lost its fifth congressional voting district” including “initiatives to expand the state’s Medicaid program, permit early voting, and reinstate the 1890 Mississippi state flag.” The state continued to apply a definition for THC similar to the federal CSA.
      • Montana - Adult use cannabis laws had taken effect in 2021 while the state CSA scheduling language was similar to Washington.
      • New York - Officials were considering “synthetic” THC and “hemp-derived products” in the schedule of controlled substances.
      • North Dakota - State legislators introduced a bill to empower officials to ban the process of isomerization of THC while also mandating “that selling hemp or hemp products that were created using the isomerization of cannabinoids to create of tetrahydrocannabinol, including D8, D9, and [delta-10-THC] could also be prohibited.”
      • Oklahoma - Lawmakers were considering the Oklahoma Adult Access to Marijuana Act which had a broader definition for “marijuana” and was “trying to define ‘isomer’” and “further” define THC while “specifically including delta-8 and delta-10.”
      • Oregon - State legislators had been considering changes in law to expand the definition of THC during a session which would end June 27th. The proposal would “tightly” regulate hemp production, control “all artificial or naturally derived” THC, specifically citing delta-8-THC and delta-9-THC, and any cannabinoid “which may have an intoxicating effect.”
      • Rhode Island - Laws in the state, specifically the Hemp Growth Act, featured “specific” definitions for CBD and cannabis that were more “exciting or helpful” than equivalent definitions for Washingston.
      • Utah - Allowed “no exceptions” for hemp in their CSA.
      • Vermont - Regulators there adopted “rules in 2020 that ban the use of synthetic cannabinoid” in hemp products.
  • Public Health Education Liaison Sara Cooley Broschart spoke to the impression she’d received from public health representatives on why “action on THC isomers other than delta-9 is necessary in Washington state” (audio - 4m).
    • She said comments in the plant chemistry deliberative dialogue suggested delta-8-THC was regarded as “impairing" and "not well studied." Broschart told the board the compound possessed “similar impairing and psychoactive effects as delta-9-THC. The [World Health Organization] estimated that it’s about 50 to 75% as potent” and that products with delta-8-THC were available in vapor cartridges and infused in foodstuffs “that are being sold online and alongside CBD products outside of our licensed retail cannabis stores.”
    • The primary areas of concern outlined by Broschart:
      • “Youth and young adults under 21 have access”
      • “The lower cost of these products because they’re not subject to the excise tax” left them particularly “more attractive and accessible to youth...and anyone”
      • “Public safety is at risk” if consumers don’t appreciate “that they may be impaired or unable to operate machinery”
    • Because delta-8-THC products were already accessible, the public could believe “that they are less harmful” than items from licensed retailers, Broschart warned. Consumers had no labels, warnings, or testing requirements to protect them from “harmful chemicals, byproducts, or foreign contaminants.” She added that there had been “several reported cases from poison centers nationally.” Broschart mentioned agency staff had been working “to address THC isomers other than D8 inside our licensed retail cannabis stores and doing a really strong job of that” but that Washington was “behind other states...in addressing the outside-of-LCB aspects.” She suggested that it was important for the board to support regulatory development “as the knowledge holders on these products.”
    • Broschart suggested WSLCB staff should seek “to regulate any impairing...intoxicating product” as “the strongest course of action from a public health perspective.” She called attention to the “imperative” work studying delta-8-THC and public health issues by agency contractee Gillian Schauer, a research scientist at the University of Washington Addictions, Drug & Alcohol Institute (ADAI). Broschart added that Schauer was available to “meet with any board member individually.”
    • Postman wanted to know if a “preferred public health approach to this” had emerged in other jurisdictions, “or is it too soon to even know what’s the right approach?” Broschart found each state was different “but I do think from a public health perspective, really, bringing the regulation of any impairing and intoxicating substance" under a single agency “makes the most sense.” Such control would be “a big job,” she conceded, but found it would be “the simplest to deal with for licensees and community” and would allow WSLCB staff to “get ahead of these issues as they continue” (audio - 1m). 

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