As Kentucky debates medical marijuana, McConnell's hemp push already lets people get high

While politicians debate whether to legalize medical marijuana in Kentucky, a lesser-known product that gets people similarly high is flourishing in the state.

And it's already legal.

Delta-8 THC — a chemical almost identical to the delta-9 THC in marijuana that drives the mental high people get — is being sold in edibles and vapes in shops across the commonwealth with minimal regulation.

It can be sold to anyone, theoretically even children, at the seller's discretion.

A huge reason for the relative absence of regulation: This niche market emerged unexpectedly and lacks federal oversight, leaving officials in states like Kentucky to decide what to do.

In the meantime, delta-8's popularity has grown in Kentucky.

"By all accounts that I've received, that part of the industry is exploding," said Katie Moyer, president of the Kentucky Hemp Association.

The delta-8 business bloomed from an unforeseen loophole thanks to a law federally legalizing hemp, a cannabis plant with very little delta-9 THC, that Senate Minority Leader Mitch McConnell helped pass in 2018. He went to bat for hemp in hopes that it could be a cash crop for Kentucky farmers.

Fact check: Does Kentucky really grow more marijuana than any other state?

Delta-8 can be indirectly derived from hemp, and the way the 2018 law was written opened the door for businesses to make and sell it. But the lack of regulation contributed to safety and other concerns, and people in the industry as well as government officials want more rules.

Kentucky Gov. Andy Beshear stepped in to help fill that void in November. In an executive order issued at the same time as a separate order on medical marijuana, he specified delta-8 products must meet certain rules, including packaging and labeling requirements that apply to other hemp-derived materials.

“To the extent that we learn of an issue, a bad health outcome, you can track the product back to exactly who has made it and further investigate," he told The Courier Journal.

"We think it’s important it’s regulated like a hemp product," Beshear said of his administration. "But with that said, we’ll watch and learn. And if we see challenges out there, we want to be flexible enough to adapt to them."

Eric Wang, CEO of Ecofibre — a hemp company with operations in Georgetown — said he thinks strong regulations are needed, at minimum.

Wang said intoxicating products weren't what hemp businesses pitched to lawmakers who helped get the crop fully legalized.

"It's absolutely not what we had committed to as an industry," he said.

Anecdotal data indicate delta-8 causes a less intense high than marijuana and shows some people use it like they would medical marijuana, to assuage issues like pain, anxiety and insomnia. Others take it for fun. And some do both.

Some industry insiders say delta-8's popularity in places like Kentucky, Indiana and Tennessee is due to the fact that medical and recreational marijuana can't legally be sold there.

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"As a product of prohibition, delta-8 THC is the bathtub gin of our generation," said Jim Higdon, co-founder of the Kentucky-based CBD brand Cornbread Hemp.

"No one wants synthetically derived delta-8, but in jurisdictions like Kentucky where naturally occurring delta-9 THC is tightly restricted, the demand for hemp-derived delta-8 has boomed."

How is delta-8 produced?

Marijuana and hemp products basically come from the same source: cannabis plants. The main difference: Although the plant looks very much like marijuana, hemp legally must include very little delta-9.

Cannabis plants generally don't produce much delta-8, which was identified by researchers decades ago. However, a lot more of this newly popular form of THC can be synthesized from a non-intoxicating chemical called cannabidiol, or CBD.

CBD can be extracted from hemp, after which delta-8 can be generated through a chemical process. The resulting oil is then used in products.

With minimal-to-no regulations in various states, pretty much anyone can make delta-8.

"If you have a bucket-load of CBD and you put it in a pot with some organic solvent and acid and boil it, it makes delta-8 chemically," said professor Kent Vrana, Penn State College of Medicine’s chair of pharmacology.

There are various safety concerns about delta-8 products, which are largely untested in Kentucky and many other states.

The chemical delta-8 isn't itself a problem, Vrana said. However, some testing has shown delta-8 products may contain heavy metals, chemical solvents and pesticides.

Using delta-8 also involves some of the same risks as using marijuana, Vrana said, including the possibility of developing an addiction.

The U.S. Food and Drug Administration hasn't evaluated or authorized delta-8 products "for safe use in any context."

Vrana said research into medical marijuana shows it can stimulate the appetite and limit seizures, and there are indications it can help manage pain. He said there’s no question delta-8 has similar potential.

McConnell's role in legalizing hemp and delta-8

McConnell declined an interview request, but he previously was clear about his big goal in legalizing hemp: boosting Kentucky farmers.

"Hemp is a versatile crop, and we continue to learn more about it every day," he said in a 2018 column. "While we may not yet know its full capabilities, I am confident the ingenuity of Kentucky’s farmers and producers will find new and creative uses for this exciting crop."

Kentucky farmers grew hemp a long time ago, but cultivating it had been outlawed for decades until Congress reversed course in the 2010s.

General counsel Jonathan Miller of the U.S. Hemp Roundtable, a Lexington and Washington, D.C.-based advocacy group, said McConnell "realized it (hemp) was something that was quite popular back home and could help out a lot of farmers."

So when the time came for Congress to approve a "farm bill," which it does every five years, Miller said McConnell wielded his influence to help make growing hemp federally legal.

Miller, a Democrat and former Kentucky treasurer, worked with McConnell and other lawmakers in 2018 to get hemp legalized and said the longtime Republican leader's support was vital.

However, Miller said the bill's language accidentally created a loophole. The law said hemp and its derivatives are legal as long as their concentration of delta-9 THC — the main intoxicating chemical in marijuana — is no more than 0.3%.

That seemingly legalized products containing other chemicals — or cannabinoids — derived from hemp, like delta-8.

At that point, delta-8 wasn't on lawmakers' or hemp advocates' radar. "But legislation is done in ways that you can't predict how it's going to be used down the road," Miller said. "This all surprised us."

The business of delta-8

Because the advent of delta-8 products was a surprise, there has been confusion over its legality.

In Kentucky, though, that question was cleared up last year when a Boone circuit judge ruled delta-8 is allowed as long as such products don't have a higher concentration of delta-9 than federal law permits.

Since the 2018 farm bill became law, dozens of business owners in the Louisville area gradually have put delta-8 vapes and edibles on their shelves. This upstart market even fueled the opening of new stores.

Kentucky's burgeoning hemp industry, overall, has had its struggles, though. Industry experts cite various reasons, including a lack of guidance from the FDA.

"Nationwide and here in Kentucky, we saw massive growth in the number of hemp acres planted from 2018 to 2019," said Doris Hamilton, the Kentucky Department of Agriculture's hemp program manager. "The resulting oversupply of raw materials, paired with FDA inaction, led to a swift drop in the prices farmers could get for their harvests — if they could find a buyer at all."

Congress plans to pass its next big farm bill this year.

When McConnell held an unrelated press conference in Louisville last month, The Courier Journal asked what priorities he'll push for in that legislation.

"Hemp was the big new thing in the previous farm bill. So far, it’s not worked out like we had hoped. It's had a lot of challenges related to the difficulty of getting guidance out of the" FDA, he said. "So, we’ll see what the priorities are for Kentucky agriculture."

Changes in Kentucky's delta-8 regulation coming?

The federal government inadvertently green lighted delta-8 with the 2018 farm bill, but it doesn't regulate it. That means states are the vanguard on that front.

In Kentucky, Beshear's recent executive order verified that certain rules on packaging apply to delta-8 products and directed the Cabinet for Health and Family Services to ensure those regulations are enforced. Plus, there's the requirement that they should contain very little delta-9 (which, remember, is illegal above 0.3%).

But other aspects of the delta-8 market aren't regulated here. Products don't have to be tested for heavy metals, for example, and people don't have to be 21 years old to buy them like they do to buy bourbon or cigarettes.

Moyer, of the Kentucky Hemp Association, said a kid theoretically could buy delta-8 at a store. But she said many retailers are careful and ask to see identification.

Delta-8 "has increased our business by over 30%. That translates into five employees that have been hired. It also has added a layer of administrative work to our staff as we 'self regulate,'" said Nancy Roberts, cofounder of the One Love Hemp Dispensary in Louisville. "We do this because it is an unregulated industry, and we are committed to a certain standard in our dispensaries."

The Kentucky General Assembly also could have a role in delta-8's future. The legislature has the power to institute stricter regulations for these products.

The Kentucky Senate passed a ban last year, but the bill died in the House. Conversely, the House has passed legislation to permit medical marijuana in recent years that died in the Senate.

The Kentucky Department of Agriculture doesn't regulate the retail sale of delta-8 or other hemp-derived products, though it does have oversight of businesses that grow and process raw hemp materials.

Senate President Pro Tempore David Givens, R-Greensburg, said the Senate's leadership hasn't discussed delta-8 this year. But he won't be surprised if the topic arises again.

"An unregulated product with the effects of THC ... we don't know what's blended with a lot of these," he said. "That opens the opportunity for abuse and health effects that we can only speculate on."

A spokesperson for the House's Republican leadership did not respond to a request for comment.

While it's unclear if lawmakers will debate delta-8 this winter, whether or not to let medical marijuana be bought and sold in the commonwealth definitely will be considered.

Beshear used an executive order to partially legalize medical marijuana for people with certain health conditions who buy it legally out of state, starting in 2023. He wants the legislature to make it fully legal.

Meanwhile, delta-8 remains in stores across the state.

"If delta-8 provides some of the same relief, then I'm grateful that it is currently legal," Beshear said, as long as "we can ensure that it is packaged safely, that it is marketed appropriately, that we can follow up on any type of safety complaints."

He'd oppose a ban.

“I believe it’s time for medical marijuana, and that we ought to move ahead in that direction. But given that delta-8 has been ruled (as) being legal here, then we need to ensure it’s properly regulated.”

Reach reporter Morgan Watkins at mwatkins@courierjournal.com. Follow her on Twitter: @morganwatkins26.

This article originally appeared on USA TODAY: How a Kentucky hemp law led to people getting high off delta-8 THC