With more states passing laws to ban the controversial cannabinoid, industry watchers fear irreparable damage to the legal and safe CBD market.
Throughout human history, there have been pivotal moments when panic and hysteria have led those in leadership positions to make hasty and ill-informed decisions, all for the supposed greater good. Such was the case with the initial prohibition of marijuana in the early 20th century, following a controversial propaganda campaign decrying the evils of the plant.
William Randolph Hearst, the most powerful media mogul of his time and the alleged inspiration for Orson Welles' masterpiece "Citizen Kane," made marijuana a top target for his publications during the 1920s and 1930s. With his incendiary words and the regulatory power of Harry J. Anslinger, the first commissioner of the Federal Bureau of Narcotics, marijuana went from a relatively harmless and popular alternative to alcohol, especially among many in the African American community, to a dangerous and heinous narcotic almost overnight.
Of course, the stories being printed by Hearst and promoted by Anslinger were about as factual as the pulp fiction novels of the era. However, the campaign worked, and in 1937 Congress passed the Marijuana Tax Act, and the federal prohibition of marijuana began. Over the next few decades, the image and reputation of cannabis became more and more distorted and culminated in the plant's inclusion as a Schedule I narcotic in the Controlled Substances Act of 1970, where it still resides.
It wasn't until the end of the 20th century and the first decade of the 21st century that marijuana finally received a fair and scientific evaluation. Since that time, almost half of the states in America have legalized recreational cannabis, and close to 80% have implemented medical marijuana programs.
Despite this change in popular and political opinion, issues are still plaguing the cannabis sativa plant, with a vast array of misinformation and misunderstanding surrounding its health and safety effects for potential users. A current example of that struggle began when Congress passed the Farm Bill in 2018, ending hemp's century-long exile as an illegal crop.
The landmark legislation removed the "marijuana cousin" from the Controlled Substances Act, defining it as any part of the cannabis sativa plant containing less than 0.3% Delta-9 THC (the most well-known psychoactive cannabinoid). This reclassification made it legal once again to cultivate hemp and, more importantly, produce hemp-derived products for legal sale. The most prominent of those products is CBD or cannabidiol.
The applications for CBD range from cosmetic to medicinal, with many users claiming that it can help alleviate anxiety, insomnia, chronic pain and even epileptic seizures. However, in recent years, one particular hemp-derived cannabinoid has received massive scrutiny by health officials and lawmakers - delta-8 THC.
Hemp is capable of producing close to 100 cannabinoids, including delta-9 THC. A less well-known variant that occurs naturally in minimal amounts is the delta-8 THC isomer. It produces psychoactive effects similar to delta-9 but in a much milder form. However, with the passage of the 2018 Farm Bill, enterprising chemical entrepreneurs could now use a legal loophole in the legislation to produce a much more powerful chemically-derived version of delta-8 from CBD.
When the new compound version received legal scrutiny, the courts took a very narrow view. It was declared legal, thus opening the veritable floodgates for new and largely unregulated delta-8 products. Unfortunately, this led to some tragic results culminating in the death of a Virginia toddler who consumed edible gummies containing delta-8.
As a result of the Virginia case and several similar incidences around the country, many states quickly passed legislation banning delta-8 altogether. As first reported by Hemp Today, with Texas, Arkansas and West Virginia strongly considering measures to ban the variant, the total number of states outlawing delta-8 could rise to 18. As a result of such drastic responses on the part of state governments, the potential economic impact on the CBD industry could be catastrophic.
Estimates indicate that as much as 75% of the current CBD supply is manufacturing unregulated delta-8 products. As more states join the collective clampdown on delta-8, the CBD market could continue an already breathtaking downward spiral. With demand for over-the-counter CBD oils and other products far lower than projected, the oversupply of raw materials has caused hemp biomass prices to plunge by as much as 90% in the past few years.
There are legitimate concerns surrounding the manufacture of delta-8 products. For example, certain studies have discovered that some D-8 offerings contain contaminants and are inaccurately labeled. There is also understandable outrage with some marketing campaigns attempting to appeal to children.
However, completely banning delta-8 may be an unnecessarily punitive overcorrection in the eyes of many industry stakeholders and advocates. As attorney Sanford Stein of cannabislaw.com eloquently explains, "If done right, that is a good and mature approach to laws and regulations. In the cannabis industry, however, anything that looks like a 'workaround' – and d-8 is just that – taking an obscure and not well-understood provision of the law and driving a truck through it poisons an otherwise measured and reassuring approach to CBD use."
"If done right, that is a good and mature approach to laws and regulations. In the cannabis industry, however, anything that looks like a 'workaround' – and d-8 is just that – taking an obscure and not well-understood provision of the law and driving a truck through it poisons an otherwise measured and reassuring approach to CBD use."
- Sanford Stein, Attorney for Cannabislaw.com
In other words, fixing the law and punishing the bad actors is a more reasonable approach than just banishing delta-8 and, by association CBD to the prison of prohibition. Put another way; there is no need to cut off the "delta-8 nose" to spite the "CBD face." Instead, for Stein and others, a better solution would be to correct the loophole and add other necessary legal protections for the industry and its consumers in the upcoming renewal of the Farm Bill in 2023.
Stein concludes, saying, "The farm bill is up for reauthorization in 2023, and there is little doubt that Congress will address the loophole with a fix-up or interpretive amendment."
"The farm bill is up for reauthorization in 2023, and there is little doubt that Congress will address the loophole with a fix-up or interpretive amendment."
- Sanford Stein, Attorney for Cannabislaw.com
Sometimes the simplest solution is the best path forward. The hemp and CBD sectors are becoming critical economic markets for an ever-changing American economy. What they need now is not banishment and judgment but rather strong leadership and intelligent choices by those in positions of power and influence.