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Delta-8 THC Ban Nearly Added to Outdoor Cannabis Farming Bill

Delta-8 THC isn't explicitly outlawed by the Controlled Substances Act, and can be produced with industrial hemp.EXPAND
Delta-8 THC isn't explicitly outlawed by the Controlled Substances Act, and can be produced with industrial hemp.
Jacqueline Collins
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"I've tried Delta-8 THC. Here's what it feels like, based on personal experience: That high is less intense than smoking joints of traditional flower," said Senator Don Coram during a June 4 bill discussion at the State Capitol. “[But] you could get very high on [Delta]-8 and 10.”

Chemically different from Delta-9 THC — the form of THC largely produced in cannabis — yet still intoxicating, Delta-8 and Delta-10 THC aren't explicitly outlawed by the Controlled Substances Act. Both compounds exist in small amounts naturally in cannabis but can be derived from industrial hemp, a plant now legally grown at the federal level. (This is done by extracting CBD from industrial hemp and then converting the CBD into forms of THC with acetic acid.)

The loopholes have produced a technically legal intoxicating product found on the shelves of convenience stores, smoke shops and e-commerce sites. To Coram, a former hemp farmer, the under-the-radar market could hurt the outdoor marijuana industry and create a public-safety issue.

“Frankly, the guidance doesn’t have the rule of law, and that’s my concern. If we kick the can down the road, we may have some young person that gets a little too much of Delta-8 and all of sudden they think they can fly and they’re off a building. There have been instances where people have gotten on THC and have crashed and burned," Coram said during a conference committee meeting for House Bill 1301.

The measure, intended to reduce cross-pollination between marijuana and hemp farms and provide outdoor marijuana growers with looser harvesting rules during weather emergencies, was nearing the finish line before Coram tossed in a last-minute amendment to ban Delta-8 and Delta-10 THC products and other modified cannabinoids.

The state Department of Public Health and Environment and state Marijuana Enforcement Division have started a stakeholder process for future legislation surrounding Delta-8 THC, according to Representative Daneya Esgar, with the MED notifying marijuana business owners that products with modified cannabinoids such as Delta-8 and Delta-10 THC are banned at dispensaries in Colorado.

“I hear the issue. I think CDPHE and MED are trying really hard to work on this issue. If it’s a loophole for public safety, it’s absolutely something I would love to continue to work on during the interim and come up with the right way to approach this, possibly next year — but I don’t think it belongs in this bill,” Esgar said during the June 4 hearing.

A beefed-up version of a similar bill from last year, HB 1301 would allow marijuana farmers to execute contingency plans to prevent crop loss from unpredictable weather events. In addition, the bill will convene a state working group in 2023 to research preventative measures for cross-pollination between marijuana and hemp farms.

Cross-pollination between cannabis plants can damage both hemp and marijuana crops, either by seeding the flower or elevating THC levels in hemp.

According to State Representative Richard Holtorf, a third-generation rancher and hemp farmer, the bill would support hemp farmers, particularly in low-income, rural areas, where outdoor cannabis farming is increasing.  “One seed in the wrong sort can upset the whole apple cart. It’s a really big problem," he said.

House Bill 1301 passed after a short deliberation following a conference committee after the House disagreed with Coram's amendment. The Conference Committee on House Bill 1301 passed the report 5-1 after a brief deliberation; it was adopted and repassed in the Senate shortly after. The measure is expected to receive a final vote in the House as early as June 7.

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