Legally Grown- Episode 2: Demystifying the legal trappings of hemp, delta-8 THC, delta-9 THC, and delta-10 THC Transcript - Norris McLaughlin, P.A., Attorneys at Law

Episode 2: Demystifying the legal trappings of  hemp, delta-8 THC, delta-9 THC, and delta-10 THC

Transcript: Ben Sheppard

Welcome to Norris McLaughlin’s Legally Grown, a limited podcast series where we weed through the topics of cannabis law in Pennsylvania and New Jersey and beyond. I am your host, Ben Shepard, Associate in the Cannabis Law Group at Norris McLaughlin. In this episode, we will be covering and trying to demystify the legal trappings of hemp, delta 8, delta 10 THC, and trying to make some sense of that. All right, now we’re going to start talking about the complexity that kind of surrounds the world of hemp and its byproducts such as delta 9 THC, delta 8 THC, and delta 10 THC. So, let’s start out by kind of saying that with the backdrop in mind, we probably see when we’re driving, going to the gas station, we see so many of these places that advertise Delta 8 products, you know, Delta 10 products, Delta 8-THC products.

You’re probably thinking to yourself, how, why are these products here in the store when they essentially can get me high? You know, I, especially if you’re in Pennsylvania, you think to yourself, well, why are these products here? You know, cannabis is, we only let medical cannabis here. We don’t have recreational.

In New Jersey, you’re probably wondering, why, why are these at gas stations and not dispensaries. Well, what we’re going to do is try to unpack here and try to make some sense of everything that’s going on from a consumer standpoint. So, the first thing I want to start out with is the current farm bill that’s in effect, it’s set to expire this year at some point. Essentially what it is, when the farm bill went into effect in 2018, it was signed into law by then-President Trump. What the farm bill did was it removed hemp from the Controlled Substances Act. It didn’t define it as marijuana anymore. And hemp is defined as the cannabis plant that does not contain more than 0.3 delta-nine THC concentration on dry weight basis. And it also includes under federal law parts of the plant and includes any derivatives compounds. So, it’s a very broad thing. Now, when we talk about the cannabis plant, the cannabis plant has a lot of components to it. What does include includes things that we all know. So, it includes things like CBD, cannabin-oil. So that’s covered. That’s a part of the plant. That’s a compound. That’s a compound that’s naturally found. It also includes, and this is where it starts getting a little bit more complex, is also Delta 9 THC is not the only THC molecule that’s in a cannabis plant. It also includes Delta 8 THC and Delta 10 THC. Now, those amounts don’t occur in large amounts naturally. What happens is individuals will make the There’s a chemical process where you essentially almost put, you take CBD and then you isolate the molecules, and you basically multiply the levels of delta 8-THC or delta 10 THC.

Now, what makes this a little bit interesting is there’s really no way to tell the difference between synthetic and natural delta 8-THC. There’s actually a case that was a Sanders case in Arkansas that was recently is now on appeal where a judge said there’s no way to tell the difference. And importantly, these products are legal under federal law. Now, originally, we didn’t have too much guidance in this area at all regarding whether or not Delta 8-THC was legal, but we did start to get some clarity in the past few years when there was of all things, it was a trademark infringement case. Now, by way of background, you cannot register a trademark unless something’s legal. So, for example, I could not register a trademark. That was specifically about crack cocaine, so I could not do a trademark like that. That being said, if I, in theory, if a court were to find that I could register a Delta 8-THC trademark, that would implicitly mean that the product is legal under federal law.

And that’s just what the Ninth Circuit held. What happened was there was a, um, vape producer that had certain trademarks for Delta 8-THC products. And at some point, their trademark was infringed upon by another, And they sue the individual for trademark infringement. And essentially what the individual who committed the violation argued was, well, you can’t sue me for your trademark because it’s not a lawful product. Well, that went up all the way up to the ninth circuit and the ninth circuit held that when you read the farm bill, it does include Delta 8 products. Delta 8-THC because it’s a component of the cannabis plant. So ergo, this is a legal product, but we don’t have a lot more guidance in that regard. So that was what the court held.

And we have our one case now, and we have some other cases that are coming up, such as the Sanders case where we’ll get to see more. But now I think we got to kind of unpack at the state level, what’s going on there. So, we’re going to talk about New Jersey and Pennsylvania. Now, both New Jersey and Pennsylvania have their own laws that end up legalizing the production of hemp.

Now, New Jersey is semi straightforward. When New Jersey says under the laws, hemp is legalized to the maximum extent permitted to federal law. Well, we follow that to its extreme. Federal law is essentially legalized. Delta allows for the sale and process of Delta 8, Delta 10 THC products. Because remember, this is the trick. When you have a product, you’re measuring based on the Delta 9 THC levels only. So, the Delta 9 THC levels can’t exceed 0. 3 percent Delta 9 THC on dry weight basis. This is what the trick that people kind of get around that is. You can have, in theory, a product with, I’ll just say a 1 percent Delta 8 THC concentration on dry weight basis. And in theory, let’s say the Delta 9 THC level is only a 0.1, well that means you have a lawful product right there. And Some people try to draw the distinction, well, Delta 8 is not discussed in Delta 9, but that’s rather hollow because think about it, you have, essentially you have a product that you have a natural component of the cannabis plant, which is Delta 8 THC.

So ergo, it falls within that definition under federal law. So New Jersey is easy, fairly easy to understand. And I would note that there is some legislation in the works. It’s been introduced various times for individuals to ultimately ban the sale or some sort of a regulation of these Delta 8 products.

That’s still in the works in New Jersey. And for the time being, these products most likely are lawful under New Jersey law. We don’t have specific cases, but that’s my opinion. Now let’s come over to Pennsylvania. Let’s cross the free bridge over into Pennsylvania. And we’re going to kind of talk a little bit about what Pennsylvania does.

Now, Pennsylvania is a little bit unclear, and we’ve seen that there’s been various raids executed by various DAs across the state of Pennsylvania. There was a situation in Lancaster where a DA authorized a raid of a vape shop that was selling Delta 8 products and confiscated those products. It’s actually a matter of federal litigation right now.

So, with that in mind, it’s a very contested area. And in particular, what’s happened is the Pennsylvania law essentially says cultivation sale or marketing of hemp is legal, provided that the Delta 9 THC concentration does not exceed 0. 3 percent on a dry weight basis. And additionally, it covers any part, that’s the key, any part of the plant.

So remember, Delta 8 THC and Delta 10 THC, they’re part of the cannabis plant. So that would mean under the law, even though it’s technically doesn’t discuss, Delta 8-THC. It’s still encompassed within that definition of hemp plant. It’s a part of the plant. It’s something you can’t get rid of. I analogize it to, it would be almost like removing the eggs from mayonnaise. It’s part of that. That’s a natural part of the, you can’t get rid of that.

Now, what we’ll see is as we kind of see these with the various prosecutions or raids, we’ll get to see more law in Pennsylvania kind of shape up on this topic. That being said, though, I think individuals who are in this industry need to be prepared, need to understand some of the risk, and they need to be aware that there are DAs who might prosecute, and there’s also raids that could occur as well, possibly seizing the product.

We ultimately need more guidance in Pennsylvania on this point. And additionally, too, we don’t really have a permitting system as well. The hemp law in Pennsylvania legalizes the marketing and sale and growth of hemp. But in fact, it actually the Department of Agriculture is tasked with this program essentially says that, well, we don’t have a permit yet. Perhaps maybe the Department of Agriculture should think about developing a permit, develop more regulations on the product. That’s what Minnesota does, and they’re really getting people more involved in the cannabis world. So that’s kind of, I think, the position that we’re in. I think better regulation is always a better thing. You know, we want to have safe products and we want to have safe products. We want people to be safe as well. And oftentimes people are going to use cannabis regardless, you know, so why don’t we make the product safe and we make everything better in that regard.

That being said, though, the products are still lawful and we should be aware of that as well. So, we need to think about all those different things and we need to kind of put them all together when we’re understanding this and just be aware that these are likely lawful products. And it’s going to be something we’ll be seeing in the near future. It’s possible the federal government could change the definition of hemp and that could change things. But we don’t have that yet. And additionally, legislation to ban Delta A products hasn’t really moved anywhere as well in the Pennsylvania government, despite being introduced multiple times.

So that’s, that’s where we’re at. So, I hope I unpack Delta 8, hemp. It’s a very scientific episode. Kind of feel like Walter White here a little bit, but on that note.

This has been Norris McLaughlin’s Legally Grown, a limited podcast series where we, weed through, and we parse through the topics of cannabis law. In New Jersey and Pennsylvania and the galaxies beyond. I want to thank you, the listener, for being part of the conversation. Be sure to tune in next time for a brand-new episode. Please check out my blog, Legally Grown, where we update you on various topics in the cannabis industry. And if you’d like to learn more, give me a shout, email me at legallygrown@norris-law.com. Thank you. And you have a great rest of your day.