Delta-8 products will remain on shelves in Louisiana as lawmakers fail to act

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Louisiana lawmakers have failed in their attempts to reign in products that contain delta-8 THC, the unregulated, high-producing synthetic compound present in gummies, tinctures and other consumables that are widely available in common retail outlets.

The state’s legislative session closed yesterday with no action taken on measures that would have restricted the products, which some consumers have turned to as an alternative to delta-9 THC present in marijuana.

The lawmaking gridlock in Louisiana means the window for selling delta-8 products could remain open for up to a year. 

The relatively low-dose products, which contain delta-8 THC in concentrated form, are made by putting CBD extracted from hemp flowers through a process in the lab. Delta-8 is unregulated by the U.S. Food & Drug Administration (FDA), which has repeatedly issued safety warnings over the products.

Lawmakers ‘misled’?

Several Louisiana Republicans had sought to roll back a law pushed through by House Speaker Clay Schexnayder last year after accusing him of misleading them with a promise that no products covered by the 2022 measure would have psychoactive effects. Passage of the bill nonetheless opened the market wide for delta-8 products, which are reported by users to produce a milder high than the delta-9 THC common in marijuana products. 

A Senate proposal that would have lowered the THC limit for CBD-based products to 2 milligrams per serving – effectively eliminating delta-8 products – stalled in the Senate Finance Committee. Another proposed law that would have included new rules for hemp products that have not yet met state approval also died when it failed to get a hearing in the Senate.

Under fire during this year’s session, Schexnayder proposed his own revised House bill offering restrictions on hemp-based consumables that retained the current limit of 8 milligrams THC per serving but placed controls on products and retailers. He later withdrew the measure in a move some lawmakers said was intended to stall restrictions — at least until the next session of the legislature takes up in March 2024. At any rate, Schexnayder has said he wants the synthetic THC products to remain available to consumers.

Push and pull

Representatives of Louisiana’s tiny hemp industry, primarily CBD producers, pushed back against the restrictions proposed this session during legislative hearings, arguing that psychoactive hemp products are not as harmful as alcohol, for which there are no potency limits. 

On the other side, owners of medical marijuana assets in the state – looking after their own interests – have pulled for restrictions. Boysie Bollinger, a major Republican donor and a stakeholder in one of two state-licensed medical-marijuana growers, warned House members in April that Schexnayder’s original bill is tantamount to legalizing recreational marijuana.

Blake Miguez, Chairman of the House Republican Delegation, has accused Schexnayder of trying to “roll out recreational marijuana through incrementalization,” suggesting the House leader’s “focus should instead be to fix the problem that he created last year.” 

Louisiana has legalized marijuana for medical use by prescription, but lawmakers so far have rejected attempts to legalize recreational pot.

What hemp ‘industry’?

Schexnayder has taken up the cause on behalf of Louisiana’s hemp industry since the federal 2018 Farm Bill legalized industrial hemp farming and products made from the plant downstream. His efforts have contributed to retail sales of delta-8 products proliferating across the state, with some 2,800 retailers now offering the products, according to the state Office of Alcohol and Tobacco Control.

Despite the dynamism of the Louisiana market for delta-8 products, the state’s hemp industry, which was based primarily on CBD products and was never very big, has withered to nothing, according to figures from the Louisiana Department of Agriculture and Forestry. Just seven acres are reported under hemp in the state this year, down from 20 last year. The state reached a peak of 932 acres in 2020, just as a crash in the CBD market was taking hold, brought on by a massive oversupply of flowers from which CBD is extracted, and demand for CBD extracts that did not meet rosy projections.

In the absence of clear regulations, beleaguered CBD producers have found a market among makers of the synthetic forms of THC. But the lack of local CBD production in Louisiana means most companies that sell hemp-derived THC products in the state are forced to get their supplies from other states.

DEA, FDA threats

While delta-8 products appear safe for now in Louisiana, that could be affected by changes at the U.S. Drug Enforcement Administration (DEA). The federal agency has already classified delta-8 THC as a Schedule I drug under the Controlled Substances Act (CSA), which gives DEA the authority to regulate controlled substances but does not specifically mention delta-8 THC. The DEA itself can adopt rules that would add delta-8 to the CSA, or Congress can change the act to embrace the compound.

The FDA has chastised delta-8 THC operators for making their products – in the form of vapes, edibles and other products – appeal to children through packaging that mimics well-known brands of candy and cookies.

A Virginia boy’s death last year was attributed to over-ingestion of delta-8 from eating gummies, leading to felony murder and felony child neglect charges against his mother. The death was officially ruled an accident attributable to “delta-8-tetrahydrocannabinol toxicity” although some cannabis experts have cast doubt on that conclusion.

Regulatory gap

Federal lawmakers failed to account for synthetic forms of THC produced from CBD when they legalized hemp through the 2018 Farm Bill. Producers have argued that because the Farm Bill made hemp and its downstream products legal, delta-8 is therefore also legal. 

Opponents suggest the 2018 Farm Bill never intended hemp to be used to make psychoactive compounds and that nefarious players are exploiting the bill’s language to sell highly potent synthetic THC products that are often rife with contaminants, inaccurately labeled, and marketed in manners that could be appealing to children. States all over the USA are grappling with delta-8, with some instituting bans and others putting such products under rules for recreational marijuana. Minnesota last week became the first state to clearly legalize both high-producing delta-8 and delta-9 THC derived from industrial hemp, and will allow such products to be widely available to consumers.

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