Washington Finely Enters the Delta-8 Fray Via the FDA

The cannabis community has been talking about Delta-8 THC for some time now. In fact, there has been quite a bit of disagreement over whether Delta-8 should be regulated. All eyes have been on Washington to see if federal regulators would step in. Well, the wait is finally over. The Food and Drug Administration (FDA) has finally entered the fray.

According to news sources, the FDA sent out warning letters to five companies in early May 2022. All five distribute cannabis products containing Delta-8 THC. Surprisingly, four of the five letters also included warnings against selling certain types of products containing CBD. Even though CBD is legal throughout the U.S., it is not generally regarded as safe (GRAS) for human consumption – meaning the FDA does not consider it safe as a food additive.

A Precursor to Further Action?

Warning letters are always curious things. Sometimes the FDA doesn’t go any further than sending initial correspondence. Other times, sending letters is a precursor to further action. We saw this a few years ago when the Trump FDA sent warning letters to companies pushing stem cell therapies. Not long after those letters went out, the FDA clarified its rules governing which types of stem cell therapies are allowed and disallowed.

Could it be that the FDA is gearing up to restrict Delta-8 THC? Not only is it possible, but it is also likely. Delta-8 THC, though it can be synthetically derived from industrial hemp, is still a Delta-9 THC isomer. By the letter of the law, this makes it questionable from a legal standpoint.

Unless Congress decriminalizes cannabis and Delta-9 THC, the FDA may have no other choice but to start clamping down on the isomer. Based on how little we know about a synthetically derived Delta-8, being cautious about it is not a bad thing.

A Legal Work Around

Delta-8 is sometimes added to CBD products as a way to get around state and federal restrictions against THC. For example, consider Utah. The Beehive State has only approved medical cannabis to date. Recreational use is not allowed. Furthermore, all medical cannabis purchased in the state must be purchased from a licensed cannabis pharmacy, like Payson’s Pure Utah.

Someone who wishes to use medical cannabis must apply for, and receive, a state medical cannabis card. In the absence of such a card, a person cannot legally purchase and consume cannabis. But that person can purchase CBD products at retailers throughout the state.

This gives consumers a way around recreational cannabis restrictions in Utah. All they have to do is purchase CBD products that contain Delta-8. It is not in bad trade off, despite the fact that the high delivered by Delta-8 is not exactly the same high you get from Delta-9.

Competing Interests in Washington

State issues aside, it is fascinating to watch the competing interests in Washington. Even as this post was being written, numerous lawmakers were working on getting a marijuana decriminalization bill through the House and Senate before the 2022 summer break. Meanwhile, the FDA are clearly interested in even more restriction.

Any frustration among members of Congress is ironic, if nothing else. Regulatory agencies, which were not part of the original U.S. government, were essentially created by Congress to handle much of their regulatory work for them. The same FDA lawmakers that created regulation on their behalf is now coming back to bite them.

At any rate, the FDA has finally entered the Delta-8 debate. For now, they have the final regulatory word. We will have to wait to see just how long they keep it.