Delta-8 & Delta-10

Dear Friends,

We have received many questions regarding delta-8 and delta-10 THC products, so for your clarity, we wanted to summarize the current regulatory landscape regarding these products.

On May 14, 2021, the Colorado Department of Public Health and Environment issued a notice that, “chemically modifying or converting any naturally occurring cannabinoids from industrial hemp is non-compliant with the statutory definition of ‘industrial hemp product.’ This includes any process that converts an industrial hemp cannabinoid, such as CBD isolate, into delta-9, delta-8, delta-10-THC, or other tetrahydrocannabinol isomers or functional analogs.” 

On the federal level, the DEA currently lists delta-8 and delta-10 as alternative names for tetrahydrocannabinols, a Schedule 1 controlled substance according to the DEA Orange Book, which includes a list of all controlled substances and substances approved of by the DEA. In fact, though hemp products with less than .3% THC by dry weight were removed from the list of controlled substances by the 2018 Farm Act, the DEA has interpreted that Act to mean that all synthetically derived tetrahydrocannabinols remain controlled substances, regardless of the THC content of the plant or hemp product they were derived from. 

This position seems consistent with the current position of the MED regarding delta-8 and delta-10 products.  The MED states that, “if the product contains any amount of delta-8 or delta-10 that was not naturally occurring it would be a non-compliant Industrial Hemp Product and therefore could not be received by a MED licensee.”

It is defensible that, since delta-8 and 10 are naturally occurring and the process by which it is derived is not “artificial,” that the DEA’s position is not correct. However, there is no further legal or political clarity on this issue and it remains a risk.

Given this complicated regulatory framework, there are still significant risks, posed by both federal and state law, associated with the derivation and production of delta-8 and delta-10 THC products. 

Please reach out to Gard Law Firm if you have any additional questions regarding delta-8 or delta-10 THC products.

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