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Nobody Seems to Know If Delta 8 Is Legal in Arizona. But That Doesn't Mean Nobody's Selling It.

Individual consumers in Arizona seem to be safe in possessing it. The Smart and Safe Act that voters approved last year allows people 21 and older to legally have five grams or less of any marijuana concentrate. That includes a Delta 8 gummy or vape cartridge.

The first thing to know about the increasingly popular cannabinoid called Delta 8 THC is that, unlike CBD, it will get you high.

How high? The internet is replete with articles and videos that attempt to detail and describe the difference between a Delta 8 buzz and that of normal marijuana, which contains Delta 9 THC. The overall verdict is that Delta 8 won't get you as intensely high as normal Delta 9 weed. Some estimates declare it 55 to 75 percent as potent as Delta 9. This has led people to call it "marijuana lite" or market it as a type of pot that provides a more clear-headed, less-impairing buzz.

The second thing to know about Delta 8 is that its legality is complicated, much like the cannabis plant from which it's extracted.

But business operators selling Delta 8 could be taking a risk. Due to its unforeseen rise in popularity over the last year, state and federal laws are ill-equipped to deal with this new chemical compound.

The result is a regulatory grey area — a situation where "you could make your own Delta 8 and even share it with your friends, but you can't sell it," says local cannabis lawyer and activist Tom Dean.

The Arizona news media has mostly ignored the rise of Delta 8, but it's been a headline-making subject in other states and generated plenty of chatter on the internet this year. The New York Times published a story on the drug in February, noting its explosive commercial growth in 2020, especially in the truck stops and tobacco shops of "prohibition" states where it's advertised as a version of pot that isn't illegal because of a supposed loophole in federal law.

That loophole is based on what critics say is a misreading of the 2018 federal Farm Bill that legalized the production of hemp. Because of the Farm Bill, Arizona, like many other states, now allows hemp-growing under the local oversight of its state Department of Agriculture. Federal law says that hemp can contain no more than 0.3 percent Delta 9 THC. The CBD extracted from that hemp and made into products like lotions and oils also must contain less than 0.3 percent Delta 9 THC.

However, Clark Wu, a business attorney at Bianchi and Brandt, which has clients in the cannabis industry, isn't even sure that much is true. He would only say that it's "probably" legal for a licensed dispensary to sell Delta 8 products.

"From my understanding, there have been licensed operators that have [previously] sold Delta 8 but pulled it off their shelves," Wu says.

Wu says his firm advises licensed operators that there may be a risk in selling Delta 8 and lets operators decide what to do with that information.

"The DHS has not issued an official position on Delta 8, but they also have not taken any action on Delta 8 products," Wu says. "If you're doing it, probably the safest way to do it is at a [state-licensed cannabis facility]... Doing it that way, you're kind of protecting yourself a little bit."

Wu believes the state DHS may address Delta 8 in future rules to codify its legal status.

Asked by Phoenix New Times whether Delta 8 was legal to sell in Arizona (even for a state-licensed dispensary), the Arizona Department of Health Services, which oversees medical and recreational marijuana sales in the state, was unable to give a definitive answer.

But the law doesn't mention Delta 8, which is made by chemically converting the CBD extracted from hemp plants. Some have interpreted that to mean Delta 8 is immune from any regulation or enforcement, setting off a rush to bring hemp-derived Delta 8 products to market faster than state authorities could act on it.

Entrepreneurs were happy with this development, not least because the chemistry involved in converting hemp-derived CBD into Delta 8 is relatively simple — numerous web pages describe how you can make it at home — and the hemp/CBD industry is far less regulated than state-licensed cannabis operations. But it's for those very reasons that critics oppose the proliferation of Delta 8.

While no toxic effects from Delta 8 have been documented — it appears to be as safe as Delta 9 — the pro-marijuana U.S. Cannabis Council released a lengthy statement about it in June, calling Delta 8's rise a "rapidly expanding crisis." The group wants Delta 8 made and sold only in state-authorized facilities and has called on law enforcement agencies to send cease-and-desist letters to unregulated producers of Delta 8.

"The fact that it is being sold outside of the regulated marketplace with no oversight or testing and is readily available to children is alarming," the group said, adding that "it presents a public health risk of potentially wider impact than the vape crisis [of 2019.]"

The U.S. Drug Enforcement Administration isn't on board with Delta 8, either. It views the drug simply as THC, which remains federally illegal. Last year, a rule change by the DEA made it clear that "all synthetically derived tetrahydrocannabinols [THCs] remain schedule I controlled substances," and in April, the DEA listed Delta 8 as just another name for THC in its updated "Orange Book" list of controlled substances, leading some industry observers to fret that a federal crackdown on Delta 8 could be coming. Several states have moved to clamp down on unregulated sales of products with Delta 8, which can be found for sale at smoke shops in states like Kansas, where possession of marijuana is still a crime.

According to Arizona state law, cannabis is, confusingly, still listed as a "schedule 1" drug — an illegal substance. An exception has been made in the law only for "the synthetic isomer of delta-9-[THC]," meaning the traditional marijuana sold at MMJ dispensaries and now recreational shops.

"In other words," says Dean, "Delta 8 would qualify as a schedule 1 substance in the state of Arizona," and thus be prohibited.

Dispensaries and individuals with personal amounts of marijuana, including Delta 8, likely don't have to worry because Arizona's medical and recreational laws define marijuana as the plant and "every compound" of the plant, its seeds, or its resin.

But commercial production of Delta 8 with hemp plants or CBD? Verboten, according to Dean.

"Nobody can sell it other than a licensed medical marijuana or recreational dispensary," Dean says.

"Any product that meets the definitions contained in the laws as passed by the voters is subject to ADHS regulation and testing. Any product that falls outside those definitions is not subject to the relevant regulations," says agency spokesperson Steve Elliott.

Yet Elliott won't say if Delta 8 actually falls outside those definitions.

"ADHS has referred those with questions about 'Delta 8' to Arizona Revised Statutes and suggested that they consult their legal counsel for additional guidance," he says.

In other words, don't ask us — talk to your lawyer and hope for the best.

Whatever Delta 8's availability was before, it's not easy to find now outside of licensed dispensaries in Arizona.

"We have not carried Delta 8 to date, and have no plans on carrying Delta 8 because of the legalities regarding that particular molecule," says Andrew Young, vice president of product management for CBD Emporium, which has 20 locations in Arizona.

The Arizona CBD company Premium Jane announced a new line of Delta 8 products in April. But clicking on the company's "Delta 8 for sale" page in Arizona returns an error message: "Ooops! Sorry, Delta-8 is not available in your area." The products can still be seen in a cached version of the page.

The company doesn't ship its Delta 8 products to Arizona, said a representative who answered the firm's phone order line. "There are certain regulations we have to abide by."

Asked if the company makes its Delta 8 in Arizona, the rep said that she's not in Arizona and that returned orders are sent to a New Jersey address. However, the company's website says it's based in Scottsdale. Calls and emails to the company and to co-founder Jeff Yauck weren't returned.

On the regulated side, local cannabis mogul Mohit "Moe" Asnani, owner of Downtown Dispensary and D2 in Tucson, praises Delta 8 and says he has no doubts that it's legal for licensed operators to sell. He's also co-founder of iLava, a dispensary-affiliated company that wholesales medical and recreational marijuana products to several dozen other dispensaries. Those products include a line of Delta 8 THC vape cartridges.

"Nobody's ever told us there were any issues," Asnani says.

ILava's "unique" formula is five parts Delta 8 THC to one part Delta 9 THC, and is available in nine different strains like Pineapple Express and Super Sour Diesel. Asnani says the market is growing, and he expects to offer 16 strains of Delta 8 cartridges by September. The products should only be acquired by adults in a licensed dispensary, he says.

"There are some people who like to be more focused and productive when they use cannabis," he says. "That's the market Delta 8 caters to."

The company's research and development manager, Claire Levenberg, says that as legal cannabis labs keep innovating, the public should expect to see many more concentrated cannabis compounds coming to retail shelves in the coming years, each with their own specialized effect.

For instance, Delta 10 THC isolate is already becoming a thing. A May article in Leafly claims that "it’s gaining popularity for its more cerebral, sativa-like head high" that, like Delta 8, is "gentler" than typical cannabis. Vape pens with THC-O-acetate are being sold on the internet, with marketers boasting about its alleged high potency and scientists warning about how little is known about it. The same is the case with Delta 9 THCp, which Levenberg notes has been called "30 times" stronger than Delta 9.

Federal and state authorities can only try to keep up with the marketers and entrepreneurs.

"Innovation is kind of outstepping legislation," Wu says.

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