Marijuana became legal in New York at the end of March, sparking celebrations among cannabis enthusiasts. Most local potheads are still buying their weed from street dealers as they await the arrival of the brick-and-mortar dispensaries that will shape the new, regulated adult-use market.
But there’s one oft-ignored fact that undermines all the hoopla around legalization: You can already walk into a CBD shop in New York and buy a legal cannabis product that gets you high. It’s called Delta-8 THC, and chemically speaking, it resembles the high-inducing THC that most people are familiar with, called Delta-9.
Delta-8 is sold in edibles, vape oils, buds and other run-of-the-mill products for cannabis consumers. And it’s growing in popularity.
“I brought it on because our business was hurting and the consumers were demanding it,” said Steven Phan, the owner of a CBD shop in the East Village called Come Back Daily. “We started to do it, and I was selling out.”
But Phan might soon need to take Delta-8 products off the shelves, thanks to new regulations proposed by the New York State Department of Health.
Some state lawmakers are urging Dr. Howard Zucker, the New York state health commissioner, to prohibit Delta-8, claiming that products containing the drug are dangerous because they can be marketed to children. At a press conference in Long Beach on Wednesday, State Senator Todd Kaminsky (D.-L.I.) held up a product called Trips Ahoy!, which has colorful packaging modeled after the cookie Chips Ahoy!.
“These products could end up in the hands of children who think they’re having an afternoon snack,” Kaminsky said. “This packaging was sold in a quote-unquote wellness store that’s a few stores down from a place that my three-year-old often plays in.”
What exactly is Delta-8 and how is it legal (for now)?
Delta-8 and Delta-9 THC are compounds derived from cannabis that have very similar psychoactive properties and chemical structures. Delta-8 is considered less potent, however, with one user describing it as a lighter, more energetic high. This trait makes it more appealing to some consumers. In fact, Phan says he recommends it to people who have had negative experiences with regular marijuana where they became anxious or paranoid.
“One of my customers [who asked for Delta-8], she’s maybe in her early 60s,” said Phan. “She said, ‘When I was younger, I smoked pot and enjoyed it. Nowadays, I try it and it’s too much. This is [the] closest thing to that enjoyment that I felt in the past.’”
Manufacturers can create Delta-8 from hemp, opening up a legal loophole.
Delta-8 occurs naturally in cannabis plants, but typically in very low quantities. However, it’s possible to convert CBD and other cannabis extracts into Delta-8 in a lab. That means manufacturers can create Delta-8 from hemp, opening up a legal loophole. Hemp is a plant that became permissible to grow under federal law in 2018 because it contains very low levels of THC and is not considered psychoactive. For this reason, hemp has traditionally been less controversial than its cousin, marijuana, but the development of Delta-8 muddles that distinction.
During the battle to legalize marijuana in New York, Delta-8 largely flew under the radar. But in late May, the state Health Department issued extensive new regulations for hemp processors and vendors. The regulations include a range of new consumer protections for products containing CBD—a non-psychoactive extract that can now be found in products like food, beverages, wellness products and vape oils—as well as a ban on manufacturing or selling Delta-8. The proposal is still subject to public comment until July 19th, and will be finalized after that date.
At the press conference with State Senator Kaminsky, Long Beach Police Commissioner Ron Walsh said his department surveyed “every single one of our CBD vendors and places where this might be available,” and only found one vendor selling the product in question, who agreed to take it off the shelf.
Phan says minors sometimes come into his store in Manhattan, but he cards them, since those under 18 are not allowed to buy CBD products under state law. He said he wouldn’t sell Delta-8 to minors but concedes that “not everyone is an honest, community-focused business owner.” He thinks Delta-8 should just be regulated, rather than banned.
The state’s proposed rules wouldn’t outlaw Delta-8 entirely but rather seek to re-establish the line between products that are psychoactive and those that are not. A spokeswoman for the state Health Department pointed out that Delta-8 “is not banned in the medical [marijuana] program, nor will it necessarily be banned in the adult-use program as that remains to be seen.”