For what feels like the last few weeks, the federally legal US hemp market seems to have had a huge spike in demand for Delta-8-THC, and subsequently the supply has as well. Let’s talk about some of the potential issues that one might run into when manufacturing, brokering or purchasing Delta-8-THC. 

First of all, what is Delta-8? Delta-8-THC is an isomer of CBD and Delta-9-THC, which means it has the same chemical formula but the atoms in the molecule are not arranged the same.

Delta-8 is federally legal under the 2018 farm bill, just like CBD, CBG, CBN, etc. What sets it apart from the other federally legal cannabinoids is that it’s psychoactive, about half as much as delta-9. Delta-8 isn’t new, Raphael Mechoulam synthesised Delta-8 back in 1965 and there are patents dating back to the 1970s.

Things to look out for:

Color – If the d8 you are looking to purchase is dark or tinted red it means that the lab that produced it did not properly clean the product post-conversion. Do not purchase as this is NOT oxidation. Oxidation will appear as a small red or purple top layer about ½” thick.

Only purchase d8 that is clear, yellow, champagne, or rose. The product should be transparent, not opaque. Stay away from anything red, brown, green, purple, etc.

Testing– One thing you may have noticed is that testing is a big issue with d8. There are a few problems one can run into. What commonly happens when isomerizing CBD->d8 is that side reactions occur such as iso-THC and Delta 10, the problem here is that some cannabis testing labs are reporting this peak as Delta 9. Due to this common issue, many producers are “lab shopping” and sending their “d8” to as many labs as they need to obtain a passable COA (certificate of analysis) . The problem here is when a law enforcement agency intercepts this package and decides that the aforementioned peak is d9, or when a customer fails a drug test, etc.

This is why you always need to ask to see the chromatograph. If there is a small (or large) shoulder to the left of your d8 peak you should be aware that some labs will read that as D9 (and in many instances it probably is d9).

Be wary of producers selling products with analytics from out-of-state. For instance, this week I received COAs from two separate labs located in Colorado in which both of them provided me with COAs from California. Why? Because they couldn’t get a local lab to give them a passing test most likely. One exception to this rule would be in states with first year hemp programs and no other cannabis programs in the state. It makes sense for somebody from Tennessee to be shipping off samples. Finding a lab to accurately test for d8 should not be difficult in any state with a functional hemp, medical, or recreational cannabis program.

There are well known d8 suppliers that have been caught selling liters with 15%+ d9. What would happen if you were to get caught with a liter of distillate 5000% above the legal limit?

Both the sender and receiver could be charged with a variety of felonies. Harvests have been destroyed and arrests have been made over hemp products under 1% THC. I am not a lawyer but I’m pretty sure a COA will not hold up in court and the lab who provided the analytics will not be held responsible.

One last thing to consider while we are talking about testing is field testing. Be aware that D8 will test positive for THC on an alkaline beam test because it is THC. This cannot be prevented with pure d8, just something to consider when transporting D8.

Mystery peaks– As I mentioned above, side reactions can occur during isomerization. Not all of them are cannabinoids, not all of them are easily identifiable, and some can be harmful to human health such as the terpene p-cymene which is a byproduct of this isomerization and can be left behind when the end product has not been properly cleaned. Be wary of anything with very low potency or out-of-place cannabinoids such as acidic precursors or varinolic cannabinoids i.e a D8 isomerization made with isolate or distillate should not contain any acid precursors.

Patent infringement- The farm bill is a two-edged sword. It opened doors for new businesses and innovation, but it also opened the doors for patent infringement lawsuits.  US patents do not necessarily grant the holder of the patent the right to utilize the discoveries, it just prevents others from doing so. Before the federal legalization of most cannabinoids derived from hemp, the USPTO was granting patents that were not legal to use because it was not federally legal. Now that hemp is legal and thousands of businesses are growing, manufacturing, and selling hemp products we are beginning to see enforcement of cannabis patents. One patent that might affect producers of d8 is Patent US20040143126A1  which is still in play until 8-5-22. It is a patent on converting CBD into d8 and d9 by Mechoulam, Sarna, and Webster. It is very broad and covers most if not all commonly used isomerization techniques.

The takeaway: Always ask to see the chromatograph. Have a good relationship with your analytics labs and the lab you are purchasing from. Don’t buy red D8 or D8 with a fishy COA.  This isn’t just a botanical extraction where the worst case scenario is residual solvents or pesticides, improper isomerization or cleanup can result in a very unsafe product not safe for human consumption.

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