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2018 US Farm Bill

Texas & the Delta-8 Debacle: Will It Stay Legal?

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Delta-8 THC sure brings with it a lot of controversy. As different states create legislation that bans the compound, Texas has showcased the growing escalation of the delta-8 battle. Whether Texas keeps delta-8 legal remains to be seen, but for now, the compound has gotten a stay, making Texas one of the first states to fight back against delta-8 prohibition laws.

Texas is in the spotlight with its ongoing delta-8 THC battle. It’s hard to say how it will go, but luckily, there are plenty of options for delta-8 THC and many other cannabis compounds out there. Delta-8 is the half-brother to delta-9, and comes with less psychoactive effect, and more energy than its THC counterpart. Check out our selection of products in the The Delta 8 Weekly Newsletter. And save big on Delta 8Delta 9 THCDelta-10THCOTHCVTHCP & HHC products by checking out our “Best-of” lists!


What did Texas do?

Texas has been going back and forth on delta-8 THC for a little while now. Last year, HB 2593 was passed through the Texas House of Representatives, which would’ve worked to lower penalties for those caught with cannabis concentrates and extracts. However, when it got to the Senate, a provision was added that would illegalize isomers like delta-8 THC through a ‘total THC’ provision. The House did not accept this revision, and opted for a resolution commission instead of signing off on it. The provision was removed by the House, the bill passed the House again, and then the Senate adjourned before a vote. This killed the bill.

On October 15th, 2021, the Texas state health department posted a notice on its website that any delta-8 products were illegal. This was rebutted by Lukas Gilkey, the CEO of CBD and delta-8 company Hometown Hero, who originally filed for a temporary restraining order against the Texas Department of State Health Services on October 21st.

Travis County judge Jan Soifer granted an injunction – not a restraining order – on Monday, November 8th, making delta-8 at least temporarily legal again in Texas. The reason given in court documents for not granting a restraining order, was that “the plaintiff has not met requirements of a temporary restraining order.” To give an idea of how unexpected getting the injunction was, Gilkey said this after the injunction was granted: “Wow, completely insane… We thought we were going to get it, but now that we’re here, it’s completely crazy.”

Texas cannabis laws

So, how did this happen if the law was never passed? Apparently, back in January of 2021, the health department in Texas added delta-8 THC to its Controlled Substances list, very, very quietly. So quietly that the agency only put up the post about the illegality some nine months later! So undercover of night, that in a May legislative session, upon talk of a new bill to ban the compound, it had to be stated by an associate health commissioner to legislators, that it had already been banned. It should therefore come as no surprise that when the state health department held a public comments session in November 2020, no one knew to come.

What is delta-8 THC?

Delta-8 THC is a naturally occurring cannabinoid of the cannabis plant. It’s predecessor is delta-9 THC, which it differs from chemically only in the placement of a double bond. When delta-9 comes into contact with oxygen, it loses elections (oxidizes) to form the more stable compound of delta-8. This means delta-8 has a longer shelf life since its already the oxidized version of delta-9.

While delta-8 and delta-9 are often associated with the same – or similar – medical benefits, delta-8 is associated with a slightly less intense psychoactive high, less anxiety, and more energy without the standard couch-locking effects of delta-9. Though delta-8 has been known about since the original research in the mid-1900’s, and used in testing for different ailments, it was never brought into the mainstream until the 2018 US Farm Bill.

Though delta-8 is naturally occurring, it only oxidizes from delta-9 at an extremely slow rate. This is problematic when it comes to creating products, because not enough can be produced naturally to use for production. For this reason, delta-8 is synthesized when used for products, either being converted from CBD using chemical solvents, or combined with zinc chloride, although the second method is less precise in terms of how much D8 vs other compounds, is produced.

The takeaway from both is that chemical solvents and zinc chloride are not from the cannabis plant, meaning both of these processes create a ‘synthetic’ by definition. Since this process is a synthetic process, the compounds involved no longer fit under the definition of hemp. Since the products now don’t fit under the definition of hemp, they are not regulated by the 2018 US Farm Bill. More on that in the next section.

Is delta-8 THC technically legal?

First and foremost, the whole reason this debate goes on at all is because of the 2018 Farm Bill, and some confusion (whether natural or instigated) that has formed around it. The 2018 US Farm Bill legalized the production of industrial hemp, and hemp-derived compounds. The legislation even came with a new definition of hemp, which sets it apart from other cannabis plants. The definition states that hemp is defined as:

delta-8 THC in Texas

“…the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol [(D 9 -THC)] concentration of not more than 0.3 percent on a dry weight basis.”

This opened the door for hemp-derived products under the confused notion (whether natural or instigated) that simply taking something out of the hemp plant means its legal if the plant contains no more than .3% delta-9 in dry weight at the beginning. This, of course, undermines the fact that the entire processing procedure and final result must also have no more than .3% delta-9. It also ignores other laws. Like the Federal Analogue Act, which states that the analogue of a Schedule I Controlled Substance (like tetrahydrocannabinols – THC), is also a Controlled Substance, and this goes for synthetics of a Schedule I compound.

And while it should have been understood the whole time, the DEA just reiterated in its recent clarification to Donna C. Yeatman, R.Ph., the executive secretary for the Alabama Board of Pharmacy, that anything made synthetically just doesn’t fall under the definition of hemp, thereby making it regulated under the Federal Analogue Act. The statement goes as follows:

“Thus, D8-THC synthetically produced from non-cannabis materials is controlled under the CSA as a “tetrahydrocannabinol.”” Of course, if it’s controlled as a tetrahydrocannabinol, then its automatically illegal. So basically, if delta-8 could be derived from hemp without any synthetization (actually naturally-occurring), it would be perfectly cool. Since it can’t in big enough quantities for production, the use of synthetization becomes necessary, making the delta-8 we use for products, non-Farm Bill compliant.

What happens next for Texas and delta-8 THC?

It’s really hard to say. Whether unwittingly or not, Texas has now become a focal point in the whole delta-8 battle. In the end, of course, so long as its made synthetically, delta-8 is federally illegal. However, delta-8 is also an exemplary candidate for the ‘no-one-will-do-anything-about-it’ loophole, a loophole that exists because of the lack of ability to police a law. And since popular opinion about legalities seems to be steered by the cannabis industry in this case, delta-8 is being written about very mistakenly.

Does it matter? Also hard to say. Synthetic processes can mean the inclusion of bad chemicals, and since delta-8 isn’t regulated, it means no one is watching to see what’s being used. I’ve said this many times in articles, the regulation of the industry is what’s needed in terms of chemicals and processes that can safely be used. Not prohibition laws.

cannabis regulation

On the other hand, it should be remembered that processes to create extractions and concentrates often use butane and other solvents, but are considered perfectly fine, and are used for products sold in dispensaries all the time. These create no different issues than the current complaints about delta-8 processing. The most important thing to understand in all this, is that delta-8 THC itself is fine, and it is merely talk of processing that creates this debate.

Clearly, the government of Texas wants to illegalize delta-8 THC, possibly from federal pressure to do so. The federal government can’t go after producers or vendors in an organized way since it would cost too much money. After spending over $1 trillion on losing drug wars, and with popular opinion so greatly changing on cannabis, the US federal government no longer has a way to go after it, and no money to do so, or ability to get the masses on board again with rampant smear campaigns. It can only force its will on state governments.

Conclusion

Will Texas keep delta-8 THC legal? Or, will Texas try another sneaky move? Quite possibly the second. Considering that the state health department held a public comments session, which no one attended because no one knew about it, I’d say the state government will go pretty far to get this through. Luckily, there is that other hand, and at this point, there might just be enough attention on the subject, and the shady way Texas attempted to illegalize it, that things could finally start going in the other direction for delta-8.

Hello to all! Welcome to CBDtesters.co, the #1 cannabis and psychedelics-related news publication on the web, presenting the most thought-provoking and relevant stories in the industry today. Check us out daily to stay up-to-date on the quickly-moving universe of legal drugs and industrial hemp, and jump over to The Delta 8 Weekly Newsletter, so you never have to guess what’s going on.

DisclaimerHi, I’m a researcher and writer. I’m not a doctor, lawyer, or businessperson. All information in my articles is sourced and referenced, and all opinions stated are mine. I am not giving anyone advise, and though I am more than happy to discuss topics, should someone have a further question or concern, they should seek guidance from a relevant professional.





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2018 US Farm Bill

Buyer Beware: Delta-8 and the Problem of Third-Party Testing

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The delta-8 industry is growing, and bringing with it tons of controversy. To deal with concerns of delta-8, third-party testing facilities have popped up to provide safety measure testing, but it seems these companies themselves are adding another layer of problems to the whole industry.

The delta-8 third-party testing industry is certainly lacking, but that doesn’t mean delta-8 is bad. In fact, delta-8 is a pretty cool compound, which can do a bunch of pretty cool things, while being just a bit different than half-brother delta-9. We’ve got great deals for delta-8 and many other cannabis compounds, but please, do your own homework, and make sure you’re comfortable with the companies you buy from, and the products you buy.

Disclaimer: This article is meant to inform buyers of what they should be aware of. Though there are plenty of specific examples, no companies will be listed in this article, and it is up to buyers to assess information for themselves, and make their own informed decisions about what is safe, or not, and what they are personally okay with, or not.


What is delta-8 THC?

The first question of course, is what are we dealing with? What is this subject which is causing so many problems? Delta-8 THC is a naturally occurring compound of the cannabis plant. While I have often written that delta-8 is an oxidized version of delta-9, I will specify that it’s not really well understood how delta-8 comes to exist in the plant, with an oxidation of delta-9 being the most expected answer. CBN is actually the main degradant of delta-9, but in testing, CBN never accounts for all delta-9 lost, and it is expected that delta-8, possibly among other compounds, fills the gap. There is no more specific answer right now about how delta-8 appears in the cannabis plant.

This answer would explain why delta-8 is more stable than delta-9, with less ability of its own for oxidation. However, if it’s found in the future that this is not how delta-8 occurs naturally, we still know that not only is it naturally occurring, but occurs in only the tiniest amounts, which are not enough for product production. What we also know, is that delta-8 can be synthesized from either CBD or delta-9, using solvents or zinc oxide. Neither of these options are part of the cannabis plant, meaning the application of either makes the outcome a synthetic by definition, as it used non-cannabis plant compounds for processing.

Delta-8 is valuable both recreationally and medically. It has been said to provide slightly less high (although this could be seen as a matter of dosing), while also not inducing the anxiety or cloudy head of delta-9. This makes it great for medical patients who want treatment without as much high, and for recreational users who have issues with anxiety or couch locking. In fact, delta-9 and delta-8 offer virtually the same medical benefits.

delta-8 THC

The delta-8 controversy

The delta-8 THC controversy is a strange one because no one has actually said there’s a problem with delta-8 THC directly, which means an entire subject of controversy, which has now led to the prohibition of delta-8 in many places, is based on other issues than the actual safety of the compound. In fact, it is simply processing methods for delta-8 that bring about the problem, along with shady third-party testing facilities that seem to be banking on this new industry.

This issue exists as a result of the 2018 US Farm Bill in which hemp, and hemp-derived compounds, were legalized. The legalization set off a misinformed idea (seemingly pushed by the cannabis industry) that this made compounds like delta-8 THC, and even hemp-derived delta-9 THC, legal. In reality, it did none of those things, since in order to be legal, a compound would have to fit this definition of hemp:

“…the plant Cannabis Sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”

Along with the following stipulations made by the DEA in a letter to Donna C. Yeatman, R.Ph., the executive secretary of the Alabama Board of Pharmacy, in answer to a request about the legality of delta-8. The letter clearly states a few things, starting with this: “Δ8-THC is a tetrahydrocannabinol substance contained in the plant Cannabis sativa L. and also can be produced synthetically from non-cannabis materials. The CSA classifies tetrahydrocannabinols as controlled in schedule I.”

Then to this: “The term “tetrahydrocannabinols” means those “naturally contained in a plant of the genus Cannabis (cannabis plant), as well as synthetic equivalents of the substances contained in the cannabis plant and/or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity to those substances contained in the plant.””

And then to this which refers back to the definition of hemp as only plant-based materials: “Thus, Δ8-THC synthetically produced from non-cannabis materials is controlled under the CSA as a “tetrahydrocannabinol.”” The funniest part about this letter, is that it was manipulated by the majority of the cannabis industry to make the statement that ‘hemp-derived delta-8 is legal’, while ignoring that the issue has to do with synthetically-derived delta-8, which the letter clearly defines as illegal.

Why the confusion?

The misinformed notions were cultivated around the ideas that 1) a hemp plant only needs to have less than .3% delta-9 in dry weight in the beginning, while ignoring this counts for processing and final products as well, and 2) that once a synthetization process is involved, none of these compounds can fit under the definition of hemp anyway, and are instead regulated as synthetic analogues under the Federal Analogue Act. In what seems like an effort to create more confusion for buyers, the term ‘hemp-derived’ as been used to replace ‘naturally-derived’, when in fact it’s being used to mean ‘synthetically derived’.

Add on to that that delta-8 sits in Schedule I of the DEA’s Controlled Substances list, and its synthetic nature means that that is, in fact, how it’s regulated. So, now we have an illegal industry that therefore isn’t regulated, which is trying to dissuade issues of safety for consumers, by the advent of delta-8 third-party testing operations meant to ensure that no bad chemicals or heavy metals are in the products. Problem is, without regulation as to how this must work, the testing facilities themselves have started to look as shady as the delta-8 companies employing them.

This isn’t shocking. Illegal industries are known to be some of the lowest, often taken advantage of by shady businessmen looking for a quick and easy buck, even to the detriment of their buying public. And this has led to claims of fake products, bad chemicals and processing methods being used, and falsified or fraudulent testing reports meant to ensure buyers that products are safe.

Concerns of delta-8 and third-party testing

Since the delta-8 third-party testing facilities don’t have to follow regulation when it comes to delta-8, and since neither do the companies selling products, there have been some issues of concern to arise in the industry. In terms of testing, it has been found on multiple occasions (and please do your own investigation), that:

  • Testing facilities often provide certificate to companies that cannot be validated. They have no clickable link, no QR code, and no way to input the sample identification number into a system to get a verification of anything. This means that paperwork to show the safety of products when it comes to bad chemicals and heavy metals, is literally 100% unverifiable, and this is never a good sign. Companies on the up-and-up will provide verification methods for their tests.
  • Many companies have been known to doctor existing safety documentation from other companies, to pass off as their own. I’ve seen clearly faked documents where the lines from where it was edited can still be seen. I’ve seen others where the company was too lazy to even update their own information, leaving on other company names. And still others that contained so little information for the company (not even an address), that it’s hard to imagine its legit. I’ve even seen safety documents that had information crossed out on them, like addresses. This is all not only troublesome in terms of knowing you’re getting a safe product, but downright fraudulent.
fake third party testing
  • Since there is no regulation, and since these safety documents are often fake, companies have been found in testing to be passing off standard cannabis synthetics, like the kind found in fake vapes and edibles, as specific compounds like delta-8 THC, meaning users aren’t getting what they’re paying for at all. This makes sense as illegal dispensaries are known for doing the same thing.
  • This all means that the products being offered could have high levels of contamination, or dangerous additives from processing, or just to create a cheaper product. And this beyond the fact that coming from many companies, a buyer isn’t even getting what they’re paying for.

What can you do?

This is where it can take a little work on the buyer’s part. In order to expect a decent product, buyers should look for a few things from the company, and any related testing facility.

  • As far as testing operations, check their reputation online, see what people are saying. If the standard line is that the company is not legit, then it probably isn’t. See if they’ve had licensing removed at any point, and why. And check to see if they provide a way to verify their safety documentation given to companies. Is there a place on the site, for example, to input a testing code?
  • When dealing with companies, see if they use any of the bogus testing facilities that have bad reputations, or that don’t provide verification. If they do, they’re probably going to sell a low-grade product. Check through their safety documents. If testing information looks doctored, if it’s missing crucial information, if it can’t be verified, or if it has the wrong company info, you’ll probably want to stay away from the company entirely.
  • This last one is debatable in terms of definite application. Technically, every legit company should have a lawyer, which means every legit company is aware that the 2018 Farm Bill didn’t legalize delta-8 if its synthetically made. Since all delta-8 for products is synthetic, it means technically any company selling delta-8 using the Farm Bill as justification, is lying. Even some companies seen as more legit, still use this reasoning, and refuse to use the word ‘synthetic’, instead giving weird definitions about ‘isomerism’, without mentioning solvents. In my opinion, even these companies are questionable, though as a buyer, you can decide for yourself.
scam report

Conclusion

I say this often and I’ll repeat it again, if delta-8 is considered safe, and these are just issues of processing, testing, and weeding out fraudulent companies, then instituting basic regulation about chemicals that can be used for processing, and processing methods, is way smarter than attempting to illegalize an industry. But logic is often ignored in life, and as such, this is the situation we are in. So if you’re going to buy delta-8 products, check out the company, and definitely check the information coming from their third-party testing facility, if its there.

Welcome to CBDtesters.co, the internet’s #1 cannabis and psychedelics-related news publication, offering up the most thought-provoking and relevant stories of today. Stop by frequently to stay in-the-loop on the quickly-changing universe of legal drugs and industrial hemp, and sign up for The Delta 8 Weekly Newsletter, so you’re sure to get every news story first.

DisclaimerHi, I’m a researcher and writer. I’m not a doctor, lawyer, or businessperson. All information in my articles is sourced and referenced, and all opinions stated are mine. I am not giving anyone advise, and though I am more than happy to discuss topics, should someone have a further question or concern, they should seek guidance from a relevant professional.





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