Updated: Mar 14, 2022
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Maryland is one of many states currently looking at regulating products containing delta-8 tetrahydrocannabinol (THC). This cannabinoid is one of over 100 cannabinoids found in the cannabis plant. Before the General Assembly, Senate Bill 788 (SB0788) would move products containing delta-8 to mirror existing cannabis laws in the state. You can find the legislation here.
What is Delta-8
In looking at hemp, the 2018 Farm Bill is focused on the delta-9 THC. Delta-9 THC is the THC associated with getting users “high” and is the cannabinoid regulated under the Controlled Substances Act (CSA). Delta-8 THC is another one of the over 100 cannabinoids found in cannabis. Although naturally occurring in the plant, delta-8 THC is produced at low levels. To create products with delta-8 THC, the processor must use a chemical reaction to make substances for the market. These products containing delta-8 THC are sold in states and produced in a legal gray area.
Why the legal gray area? The Drug Enforcement Agency (DEA) issued an interim rule in 2020 that explained that all synthetically derived THC remains illegal under the CSA. Now comes the legal gray area. Hemp advocates argue that how delta-8 THC is synthesized does not make it prohibited under the interim rule. The advocates would say that since the delta-8 THC products are derived from the original plant, they are excluded from the DEA’s interim rule. Those opposed argue that the delta-8 THC products fall under the DEA’s interim rule prohibiting synthetically derived products. For more thoughts on potential federal action that DEA could take on delta-8 THC products, check out this post by Troutman Pepper.
The Food and Drug Administration (FDA) has also released guidance to consumers highlighting that delta-8 THC products have not been evaluated for safe use. At the same time, FDA has received reports of potential health risks related to delta-8 THC products. For more information on FDA’s guidance on delta-8 THC, check out this overview from the FDA.
At the same time, states are considering taking action on delta-8 THC. Several states are looking at either restricting or banning delta-8 products.
Proposed Senate Bill 788
SB0788 would handle an issue that many states are currently grappling with: regulating delta-8 THC. This proposed legislation would change the definition of “hemp products” in the state to exclude those containing more than 0.3 percent delta-8 THC concentration on a dry weight basis. However, the proposed legislation would not change the definition of “hemp products” that already excluded those containing more than 0.3 percent delta-9 THC concentration on a dry weight basis.
At the same time, the proposed legislation would make possessing products with a concentration of greater than 0.3 percent of delta-8 THC concentration on a dry weight basis a crime under the state’s Controlled Dangerous Substances Act. In addition, SB0788 would move regulation of products containing a concentration of greater than 0.3 percent of delta-8 THC concentration on a dry weight basis to the state’s Medical Cannabis Commission (MCC). The legislation would provide the MCC with the ability to regulate delta-8 THC products as a part of the medical cannabis program in the state.
SB0788 is how the General Assembly considering how delta-8 products should be regulated. On a dry weight basis, products falling under less than 0.3 percent of delta-8 THC concentration would still be considered a “hemp product” and legal to produce. Products at a greater concentration would either fall under the state’s Controlled and Dangerous Substance law or be regulated under the MCC. The legislation would not shut the door to delta-8 products in the state but would make them more closely align potentially with existing laws in Maryland.
This work is supported by the Agriculture and Food Research Initiative (AFRI) program, grant no. 2021-68006-33894/project accession no. 1025097, from the U.S. Department of Agriculture, National Institute of Food and Agriculture.