Delta-8 THC rise prompts push for hemp oversight in Oklahoma

Delta-8 THC rise prompts push for hemp oversight in Oklahoma


As dispensaries, gas stations and other stores sell an increasing amount of chemically altered THC products, state officials worry that no oversight means no consumer protection.

Producers of hemp byproducts like THC-O-acetate, delta-8 vape cartridges and edibles are using a legal loophole in the 2018 Farm Bill to make products with marijuana-like effects while avoiding regulations, they say the authorities

The director of the Oklahoma Medical Marijuana Authority said earlier this week that the agency expects to see legislation regulating hemp, specifically hemp byproducts, in the upcoming legislative session.

“Right now, I don’t know that consumers always know what they’re buying when they buy these products. A lot of times, it says hemp on the label,” said Adria Berry, director of OMMA. “So people might think it’s not something that’s going to get them high, when in fact, it could actually get them high.”

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Hemp has industrial uses—in very durable textiles, biodegradable plastics, and cosmetic oil—and is the same plant species as marijuana. The difference between hemp and marijuana is the amount of THC: the psychoactive cannabinoid that causes a high. Cannabis plants with a THC potency of less than 0.3% dry weight are considered hemp. Any cannabis plant that exceeds this THC potency is classified as marijuana, which is an illegal substance under federal law.

The main non-intoxicating cannabinoid found in hemp can be chemically altered to create THC products such as delta-8 and THC-O-acetate.

“The Department of Agriculture already regulates hemp that is used for industrial purposes, and even for CBD purposes,” Berry said. “But where the regulatory gray area starts is when you switch from basic CBD to these intoxicating products. So that’s where we need clarity.”

THC analogs like delta-8 can be put into consumer products without the age restrictions or package warnings that are placed on regulated marijuana.

“We want to ensure that consumers are protected by requiring proper testing, packaging and labeling,” Berry said.

Hemp plants are exposed to a solvent and strong acid to create the THC analogs, which must be cleaned to prevent solvents and acids from remaining in the final product. The unregulated nature of these products means cleanliness is not guaranteed, Berry said.

“If solvents were used, consumers would want the product to have gone through a rigorous testing program to ensure that there are no solvents left in that product,” he said. “If there are solvents left, then you inhale them into your lungs or eat them and get them into your body or apply them topically.”

Rep. Scott Fetgatter, R-Okmulgee, has been working on cannabis regulations since medical marijuana was legalized in Oklahoma. He noted that he has introduced variations of a bill to regulate hemp products over the past three legislatures. The first attempt was House Bill 3786 in 2020.

“I mean, it’s federally legal, so they can sell it on the Internet, too,” Fetgatter said. “And so there have to be some laws that we put in delta-8 that deal with testing and that sort of thing.”

The barrier to growing hemp in Oklahoma is low, compared to the process of growing marijuana. A grower must be 18 years old and submit an application and fee to the Oklahoma Department of Agriculture, Food and Forestry (ODAFF). The application requires a criminal record report for each key participant in the business and proof of ownership or the lease of the area where the hemp will be grown.

ODAFF regulates hemp to verify that the product is below the legal THC limit (0.3% dry weight), and for hemp that will be used to make CBD products, there are pesticide restrictions and safety controls for fungal contamination or heavy metal levels in the plant.

If CBD is converted to delta-8 THC (or any THC analog, as long as it is not delta-9 THC), ODAFF has no regulatory authority over the resulting products.

A core concern, in addition to the health concerns of unregulated products, is the lack of labeling requirements. Without regulations, it can be difficult to know and almost impossible to verify what level of intoxication to expect from the product.

“They don’t say what the concentration of the product is,” said Kenny Naylor, director of the Agriculture Department’s Consumer Protection Services. “So the person who’s buying it doesn’t know.

“If you’re going to buy marijuana gum, you know the concentration of delta-9 THC levels. If you’re going to buy a delta-8 product, for example, you don’t know what the concentration is.”

Other states have tried to regulate or ban these products and ended up being sued. Arkansas, Maryland, Indiana, Virginia and, most recently, Alaska have faced lawsuits over the constitutionality of regulating or banning hemp products legalized under federal law.

“I mean the federal government really needs to get its act together on all of these things,” Fetgatter said. “It would free up the state to be able to do the things they need to do.”

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Patrick Prince




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