New York hemp license holders and applicants received a letter on Tuesday reminding them that two popular hemp-derived products remain illegal.
When the 2018 Farm Bill legalized hemp, defined as cannabis plants containing .3% THC or less, operators in a number of states, including New York, began to convert cannabidiol (CBD) derived from hemp into delta-8 and delta-10 THC, which are isomers of the main THC, which is delta-9. Unlike CBD, these compounds produce a high. Today, these products are sold throughout New York, from gas stations to bodegas.
“To clarify any confusion surrounding these products, we are advising you that the sale of any cannabinoid hemp products which contain Delta-8 THC or Delta-10 THC created through isomerization, are strictly prohibited in the Cannabinoid Hemp Program,” reads the letter, sent by the Office of Cannabis Management, which Cannabis Wire obtained. “At no time has the sale of these products been authorized in the Cannabinoid Hemp Program as these products contain intoxicating qualities which are more appropriately regulated by the Adult-Use or Medical Cannabis Programs.”
The Cannabinoid Hemp regulations took effect on November 24, and when those rules went live, so too did the explicit ban on the sale of delta-8 THC and delta-10 THC products.
“If your business is selling Delta-8 THC and/or Delta-10 THC, you must immediately cease and desist this activity,” the letter read.
OCM spokesperson Aaron Ghitelman told Cannabis Wire that this letter was “part of our regular efforts to educate New Yorkers, both in and out of the cannabis and hemp industries, of the specifics of New York’s Cannabis Law.”
But, if these producers continue to produce Delta-8 and Delta-10 THC products, further enforcement efforts could follow.
“New York State will continue to enforce product safety standards in our state’s hemp program even if the federal government does not,” Ghitelman told Cannabis Wire.
“If unlicensed growth and sales of these products don’t stop, they will face consequences from fines to losing existing licenses to running the risk of not getting adult-use licenses to join the market when it opens.”
The Cannabinoid Hemp rules were discussed during the November 3 meeting of the Cannabis Control Board, which sits within the OCM. Regulators reiterated that delta-8 THC products were “definitely banned.”
“Delta-8, similar to delta-9 THC, is psychoactive, has psychoactive properties, particularly when synthesized through the processing process. Because of that, we’ve decided to hold off on including the regulations for those products in this package and that will be addressed in the future adult use packages,” OCM director Chris Alexander said during a question and answer portion of the meeting, when asked specifically where delta-8 rules stood.
Intoxicating products created from hemp is a national issue. Last September, the Centers for Disease Control and Prevention (CDC) issued its first health advisory related to delta-8 THC products, released alongside a “consumer update” from the Food and Drug Administration (FDA). Much of the focus was on the unregulated nature of these products and labeling issues.
For example, the CDC recommended that retailers selling these products “should provide information to consumers about the psychoactive qualities of delta-8 THC,” and “should report total THC content on product labeling, including ingredients like delta-8 THC that may be synthetically produced to create a psychoactive effect.”
Last March, during a Substance Abuse and Mental Health Services Administration (SAMHSA) Drug Testing Advisory Board (DTAB) meeting, Ron Flegel, the chair of the Board, flagged “as an emerging issue, the delta-8-THC or other THC isomers.” Flegel added that “the delta-8 is an impairing substance, and it is being marketed on the internet dramatically as we speak.”
Cannabis regulators across the country are puzzling over what to do about delta-8 and delta-10 THC products. Last September, Gillian Schauer, executive director of the Cannabis Regulators Association (CANNRA), gave a presentation hosted by Colorado State University Pueblo called “Delta-8 THC and other THC Analogs: Public Health and Safety Consideration.”
“They’ve been in a gray area legally and they’ve otherwise been outside of regulatory control, which is part of why I think we’ve seen a boom in the market. There is no regulation over them at this juncture in most states,” Shauer said. The products that regulators see most often are vapes and oils, with some edible products, she added.
“We have legally created a parallel marketplace where you can have psychoactive products with much lower barriers to entry and very different regulation than you might see on the adult use cannabis marketplace,” she added.
Some hemp groups have also come out against these products. The U.S. Hemp Roundtable released a statement in February that it was “deeply troubled about the increasing proliferation of products that are sold under the guise of the hemp name but that are marketed for their intoxicating effect.” The group has also called on the FDA and state regulators to enforce laws to “crack down” on products made from hemp that produce a high.
“This kind of marketing is not simply a threat to public health and safety — particularly for kids that might purchase these products at retail — it undermines the integrity of the legal hemp industry, and ultimately threatens the livelihoods of farmers themselves,” said Russell Coleman, Ethics Counsel to the U.S. Hemp Roundtable, and also former staffer to former Senate Majority Leader Mitch McConnell. “It’s just common sense to say that these efforts are far outside of Congress’ intent when it created the legal hemp industry through multiple Farm Bills.”
Editor’s note: This story was updated to include comment from the Office of Cannabis Management.
