Why is NJ trying to ban delta-8, the 'bathtub gin' of legal weed?

TRENTON — Despite all appearances to the contrary, that jar of gummies or vape cartridge at your local convenience store — even the one with the big pot leaf that advertises an indica or sativa strain — is not, in fact legal weed.

Not technically.

Across the country, states are reckoning with a booming marketplace for delta-8, one type of synthesized cannabis that has a psychoactive component, like legal weed. But thanks to regulatory loopholes, they're for sale on the open market, easier to purchase than even cigarettes or alcohol.

“It’s the bathtub gin of the cannabis space and it’s being sold to kids without any of the restrictions or product safety regulations required under New Jersey’s recreational adult-use cannabis law," said Sen. Declan O'Scanlon, R-Monmouth, one of the primary sponsors of a bill that could soon pull delta-8 products off shelves across the Garden State.

O'Scanlon's bill, which is also sponsored by Sen. Teresa Ruiz, D-Essex, and in the Assembly by Assemblyman Paul Moriarty, D-Gloucester, comes while New Jersey's cannabis industry is under scrutiny by state legislators.

New Jersey Cannabis Regulatory Commission Chair Dianna Houenou and Executive Director Jeff Brown appeared before the Senate Judiciary Committee on Friday to discuss the lengths to which the regulatory body, created by the Legislature itself, has gone to get a booming cannabis industry up and running.

In the last four quarters of data available, marijuana patients and customers purchased more than $679 million on cannabis products in New Jersey, nearly 70% on the recreational market, according to statistics from the Cannabis Regulatory Commission.

When asked if there's anything holding the market back from growing even further, Brown identified a few potential issues, including the proliferation of delta-8 products at gas stations, convenience stores and smoke shops across the state.

"It's certainly an issue that impacts legal, regulated (cannabis) sales. … More needs to be done in relation to these products," Brown said. "They pose challenges to the legal market."

Here's a breakdown of everything you need to know about delta-8 and the possible prohibition of these products in New Jersey.

So what is this delta-8 stuff anyway? Will it get me high?

The cannabis plant has numerous types of cannabinoids that occur naturally in the plant's biology. Depending on the type of cannabinoid and how it's used, it can have different effects.

You've probably seen CBD infused in hundreds of products on hundreds of shelves in hundreds of stores. That's just one of many types of cannabinoids.

Every cannabinoid has some level of THC, the psychoactive component of cannabis. But what we usually refer to as "marijuana" is one specific type, known as "delta-9."

What you won't find in a cannabis plant is delta-8 — that's because it's synthesized. It's man-made.

It starts as CBD, which contains a trace amount of THC — low enough that CBD products aren't actually intoxicating, which is why they're so readily available and legal under federal law.

But after it's combined with an acid and a solvent, a chemical reaction occurs that transforms CBD into an entirely different compound, delta-8. It still has the same, legal level of delta-9 THC. And unlike CBD, it can get you high.

How is this any different from legal weed you can buy at a dispensary?

There's a really short answer, but it's not a good one: We don't know, at least not for sure.

There is plenty of anecdotal evidence out there that suggests a delta-8 high is less potent than the high that comes with delta-9. But there's also little information on dosage, so it's easy for someone to consume too much and experience serious effects.

"They could be hallucinating. They could have significant anxiety, feeling like they're jumping out of their skin," said Bruce Ruck, managing director of the New Jersey Poison Control Center at Rutgers New Jersey Medical School.

From January 2021 to February 2022, U.S. poison control centers received nearly 2,400 cases of exposure to delta-8 products, about 41% of which involved patients under 18 years old. About 70% of exposures resulted in evaluation at a health care facility, about 45% of those patients were under 18 years old, and 8% were admitted to a critical care unit.

Keep in mind that the human body is unique from person to person, and so is its tolerance to drugs. The Food and Drug Administration even warns consumers that it may overpower the tolerance someone might develop from "historical use of cannabis."

But there's little scientific research available on any cannabis product, because the drug remains illegal on the federal level. Research institutions, such as colleges and universities, put their federal funding at risk if they bring an illegal substance on campus, and the only cannabis available for research purposes barely resembles products available on the open market.

So if it's not as bad as legal weed, why are people so worried about it?

The problem with delta-8 isn't necessarily the compound itself, but how it's made.

Every ingestible product available in a store is manufactured at a facility that undergoes some kind of inspection, whether it's meat or candy or alcohol. Pharmaceutical drugs undergo scientific studies. Even legalized cannabis must be manufactured at a licensed facility subject to inspection and regulation by the government of New Jersey.

But delta-8 doesn't undergo that kind of process. Some hemp companies offer QR codes showing testing lab reports on their products, but that's different from an independent scientific study ordered by a government office that's interested solely in protecting consumers.

In short: Nobody's really paying attention, at least not in the way other ingestible products are scrutinized.

"We're best off when we regulate these compounds because they are intoxicating," said Dr. David Nathan, a Princeton psychiatrist and founder of Doctors for Cannabis Regulation, an advocacy group. "And if there is some resemblance in its effects to delta-9 THC, then that implies there could be a health hazard to certain at-risk groups, including minors and people with psychiatric disorders."

Earlier this year, four laboratory members of the New Jersey CannaBusiness Association, which acts as the state cannabis industry's chamber of commerce, purchased four different delta-8 vape cartridges from four stores across the state and put them under the microscope to see what they found.

Three of the four samples were grossly mislabeled, said Sarah Ahrens, founder and CEO of East Hanover cannabis testing laboratory True Labs, at two recent separate legislative hearings on delta-8 bills.

Products that were advertised as 100% delta-8 contained completely different cannabinoids, Ahrens said. Some contained not only delta-9, but over 1% delta-9, making them technically illegal drugs under federal law. In one sample, labs found 15 compounds that they couldn't even identify, she said.

"These hemp-derived synthetic cannabinoids, whether intoxicating or not, are created in unregulated manufacturing environments using processes with virtually no oversight," Ahrens said.

Basically, there's really no way to know what's in a "delta-8" product. And that means there's no real way to predict how it'll affect the consumer and, in turn, how much is "too much."

"The absence of clear guidance on safe and effective dosage means consumers may unintentionally ingest larger-than-needed quantities, potentially leading to unforeseen health consequences," said Brett Goldman, who works in the hemp industry and sits on the New Jersey CannaBusiness Association's hemp committee.

If it's so dangerous, why can I buy it from any convenience store?

Like many questions involving cannabis, this should probably be directed at the federal government.

The issue goes back to 2018, when Congress passed the latest version of the farm bill, an omnibus agriculture spending package reauthorized every five years. The big change in that bill was the inclusion of industrial hemp, defined as cannabis with less than 0.3% THC. Hemp was no longer considered a controlled substance, so it could be grown, manufactured, processed and sold at will.

That's why CBD is legal — even after it's synthesized into delta-8.

But here's the problem: The Food and Drug Administration, which is charged with ensuring that all ingestible products are safe, has taken a hands-off approach. The FDA has cited companies that sell cannabis products promising snake oil-type health benefits and those that include them in food or drink products.

When it comes to the actual cannabis itself, the FDA doesn't intend to "pursue rulemaking," FDA Principal Deputy Commissioner Dr. Janet Woodcock announced in January.

There has been some movement in recent months. Woodcock's statement said the FDA would work with Congress on a new regulatory framework for CBD products, including delta-8, as part of the reauthorization of the farm bill coming this year. And an FDA presentation on "a new way forward for CBD and other hemp products" says that framework could provide a pathway for basic oversight, including labeling requirements to prevent children from consuming products, as well as opening up a market for CBD products for animals.

But in the meantime, 26 states have taken it upon themselves to regulate or ban delta-8 products.

What's New Jersey doing about delta-8?

A bill that would essentially pull delta-8 off the shelves across the state could become law by the end of this month.

In recent weeks, committees in the Assembly and Senate have advanced bills that would treat delta-8 like any other psychoactive cannabis product. Any manufacturer that produces delta-8 must be licensed by the New Jersey Cannabis Regulatory Commission, which means it has to adhere to certain standards and is subject to inspection and testing. And any retailer who wants to sell delta-8 must have the same approvals — which means a dispensary license.

“Despite having psycho-active properties similar to marijuana it is easily accessible and completely unregulated, posing a serious health risk to our communities," Ruiz, a primary sponsor of the bill, said in a statement. "This legislation will make it clear that delta-8 has not been tested or endorsed as safe for public consumption.”

If the bill passes a full vote by the Senate and Assembly and is signed into law, stores would be required to pull those delta-8 products off the shelves.

The main opponent to this kind of legislation is the U.S. Hemp Roundtable, a hemp business advocacy organization that has fought similar legislation in other states.

Jonathan Miller, the organization's general counsel, likened it to a "war on hemp" waged by the legal weed industry.

"Some of these folks in the dispensary business are really trying to gain a monopoly on any products that have cannabis in them," Miller said. "And they're trying to ensure that any product that contains any amount of THC in them must be regulated by the dispensary system or outright prohibited."

The U.S. Hemp Roundtable has instead pushed states to adopt bills that call for some regulatory teeth instead of an outright ban. Instead of the removal of delta-8 from the shelves, it would instead be put behind lock and key with an age requirement, similar to cigarettes.

And as with cigarettes, state regulators would be responsible for ensuring they're not labeled in a way that appeals to children, that stores are checking IDs, and that the products are manufactured in a safe environment.

Similar laws have been passed in Kentucky, Tennessee, Florida and Illinois.

"Prohibition has proven, for the last century, that it doesn't work," Miller said. "What we're hoping to accomplish in New Jersey is a model that doesn't ban these products but strictly regulates them."

Mike Davis has spent the last decade covering New Jersey local news, marijuana legalization, transportation and a little bit of everything else. He's won a few awards that make his parents very proud. Contact him at mdavis@gannettnj.com or @byMikeDavis on Twitter.

This article originally appeared on Asbury Park Press: NJ legal weed: Delta-8 could be banned in new law