Numerous nuances and a landscape that seemingly shifts by the day characterize what Faye Caldwell considers the “hottest topic in hemp right now”: delta-8 THC.
Caldwell, a Houston-based employment law attorney and member of the National Safety Council Alcohol, Drugs and Impairment Division, made the remark during a recent discussion on the legality of delta-8 – a chemical compound in marijuana.
“Anyone who thinks that delta-8 is federally legal or thinks it’s federally illegal, the correct answer is unclear at this time, and there are lawsuits going on,” she said. “It’s just not tremendously clear.”
Safety+Health spoke with Caldwell and other experts about delta-8 THC and what employers and safety professionals need to know.
How is it made?
Delta-8 THC naturally occurs in small quantities in the cannabis plant. It’s chemically similar to delta-9 THC, the psychoactive compound that gives marijuana users a high. Many products that contain delta-8 – available in gummies and vapes, among other forms – are synthesized in labs to increase the amount of the chemical compound.
Regardless of its origin, the consensus among hemp experts is that delta-8 produces a lesser psychoactive effect than delta-9.
“They talk about delta-8 THC like the less potent cousin to delta-9 THC, and that’s true,” said Ben Rosman, CEO and co-founder of PSI Labs, a cannabis testing lab in Ann Arbor, MI. “The reason for that is the way it binds to the endocannabinoid system. That’s why it’s slightly less psychoactive.”
From the National Safety Council’s “Impairment Recognition and Response Training for Supervisors” course. Learn more about this new NSC eLearning which trains frontline supervisors, safety professionals and managers to recognize and properly respond to diverse causes of workplace impairment. © 2021 National Safety Council
What does this mean for employers?
“From the employer lens, the concern is that these products can cause impairment, and they’re also not being regulated” at the federal level, or in numerous states, said Claire Stroer, program manager II of the impairment practice initiative at NSC.
Products containing delta-8 can still produce psychoactive effects, which can impair a worker’s judgment and, in turn, endanger the worker and others around them.
Additionally, the expanding popularity of products containing delta-8 “combined with a general lack of regulation has precipitated the entrance of substandard products into the market, many of which contain adulterants, contaminants and toxins that may be harmful to consumers,” the Hemp Industries Association, a nonprofit trade group, says in a position statement issued in June.
For employers, “knowing their state laws, even if they’re wonky, is important to understand what might be legal and available,” Stroer said.
She continued: “If a company is in a state where cannabis is technically illegal, they might have more of a presence of delta-8 products. It’s important that employers are educating employees on potential hazards of unregulated products, not only as it relates to the impairment risk, but also the risk presented by the potential presence of residual solvents, pesticides or other contaminants. It’s worthy of communicating that, but then also letting them know that delta-8 is impairing, that it’s a safety risk.”
Associate Editor Kevin Druley discusses this article in the Nov. 2021 episode of Safety+Health‘s “On the Safe Side” podcast.
Where to begin with the regulatory debate?
Although various states recently have revised drug laws to legalize marijuana, the Substance Abuse and Mental Health Services Administration issued a memo in November 2020 reminding officials that such steps don’t change the tenets of the federal government’s Drug-Free Workplace Program.
The program will “continue to test for Schedule I and Schedule II controlled substances at the established cut-off levels listed in the Mandatory Guidelines,” the memo states. Schedule I drugs prohibited under federal law include cannabis, heroin, LSD, ecstasy and peyote. Schedule II drugs include Vicodin, cocaine, methamphetamine, methadone, OxyContin, fentanyl, Adderall and Ritalin.
Still, confusion emerged about two years before the memo was published, as the Agriculture Improvement Act of 2018 – commonly known as the Farm Bill – amended the definition of “marijuana” under the Controlled Substances Act of 1970. Under the law, hemp-derived products with a delta-9 THC concentration of 0.3% or less are no longer considered controlled substances. The law, however, makes no mention of delta-8 THC.
Many contend that the Farm Bill development helped trigger a surge in production of products containing delta-8.
“Once states adopted the 2018 Farm Bill into their own state laws, many used the same language, which resulted in a higher likelihood of having delta-8 products popping up all over the place, because that language is very ambiguous,” Stroer said. “But some states did add in a little more clarification.”
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What actions have states taken more recently?
At press time, states that had banned or restricted products containing delta-8 THC included Colorado and Washington – where recreational and medicinal use of marijuana is legal.
Noting that the Revised Code of Washington views all compounds of THC as Schedule I substances, the Washington State Liquor and Cannabis Board in April issued a policy statement declaring that the production and sale of synthetically produced delta-8 products violates state law.
That same month, Vermont clarified that the manufacture and use of hemp products containing delta-8 are prohibited under the state hemp program, while the Kentucky Department of Agriculture declared delta-8 THC a Schedule I drug, stating that distributing products containing delta-8 is illegal and could prompt “potential expo-sure to criminal prosecution.”
Several other states have taken steps to regulate delta-8, including Michigan. In July, Gov. Gretchen Whitmer (D) signed legislation, effective Oct. 11, that regulates the chemical compound, allowing only licensed cannabis retailers to sell products containing delta-8 THC.
Rosman praised the action as a “very smart, progressive approach” to the issue.
“Consumers won’t have to worry about potential heavy metal contamination, chemical residues, residual sol-vents, microbiological contamination,” he said. “And they can be assured that the potency that is on the label is accurate.”
A recent analysis of 38 products containing delta-8 THC by the CBD educational platform Leafreport shows that the chemical compound wasn’t clearly listed on the label or product description of 13 of them (34%), while 68% contained the incorrect amount.
In September, the Centers for Disease Control and Prevention issued a Health Alert Network advisory addressing concerns related to unclear labeling of products containing delta-8. The agency reminds the public to “be aware of possible limitations in the labeling of products containing THC and CBD,” noting that labels displaying only the concentration of delta-9, but not total THC, “may underestimate the psychoactive potential.”
NSC, in a position statement, writes: “Requiring cannabis or cannabis-derived products to have accurate information on packaging will improve public safety and allow authorized users of cannabis to use it in a safe and appropriate manner. It is imperative that consumers know what they are putting into their body, and effective labeling requirements and oversight will directly benefit public health.”
What’s happening at the federal level?
Under an interim final rule published by the Drug Enforcement Administration in the Aug. 21, 2020, Federal Register, all synthetically derived THC remains a Schedule I controlled substance.
Still, the Farm Bill doesn’t reference DEA having oversight authority, Caldwell said.
A DEA spokesperson told S+H that the agency was still reviewing public comments on the interim final rule and hadn’t yet made it final.
“As DEA is currently undergoing the rulemaking process regarding the implementation of the Agriculture Improvement Act of 2018 – which includes the scope of regulatory controls over marijuana, tetrahydrocannabinols and other marijuana-related constituents – we would be unable to comment on any impact in legality of tetrahydrocannabinols, delta-8 included, until the process is complete,” the spokesperson said. “We are in the process of reviewing thousands of comments and do not speculate on what could happen as a result.”
During a June 16 webinar presented in conjunction with lab services provider Quest Diagnostics, Caldwell said that “the world tilted on its axis in December of 2018 when the Farm Bill was passed,” as certain types of cannabis no longer were considered Schedule I substances.
One ripple effect was an impact on employer drug testing, Caldwell told S+H. For instance, the departments of Transportation and Health and Human Services don’t accept CBD or hemp use as a reasonable explanation for a positive test for marijuana.
Under federal regulations, motor carriers must conduct preemployment drug testing in addition to random testing. Employees who test positive are prohibited from performing safety-sensitive functions, which includes operating a commercial motor vehicle.
In February 2020, DOT issued a compliance notice offering caution about CBD products.
“It remains unacceptable for any safety-sensitive employee subject to the Department of Transportation’s drug testing regulations to use marijuana,” the notice states. “Since the use of CBD products could lead to a positive drug test result, Department of Transportation-regulated safety-sensitive employees should exercise caution when considering whether to use CBD products.”
Is delta-8 detectable in drug testing?
Laboratories under the federal drug testing program screen for delta-9. Caldwell said she is aware of at least one lab that performs specialized delta-8 testing.
“The question is: Is there a demand for it? That would have to be developed,” Caldwell said. “Do they have the ability? Sure. Most labs would. But it’s not widespread, if at all.”
With confusion surrounding the legality of delta-8 THC, therein lies another conundrum.
“Then, of course, the question is: What action do employers take if it is found in a specimen?” Caldwell said.
