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How Mitch McConnell Accidentally Created An Unregulated THC Market

Sen. Mitch McConnell didn’t know what he was doing when he passed the 2018 Farm Bill. The bill included his provision that legalized industrial hemp, a form of cannabis that can be made into a wide variety of products including cannabidiol, a non-intoxicating cannabis compound commonly called CBD. That part was intentional — the law quickly launched a multi-billion dollar industry that put the once-obscure CBD compound into lattes, seltzers and hundreds of CVS stores across the country.

But after three years it appears one of the law’s biggest impacts was entirely unintentional: It accidentally created a booming market for synthetic THC, marijuana’s primary intoxicant. 

The same type of CBD that’s for sale at CVS is now being synthetically converted into THC and packaged into vape cartridges and gummy bears. Thanks to a loophole in the 2018 Farm Bill, these drugs are marketed as a “legal high” and sold online and in states where marijuana remains illegal.

But chemists warn that these drugs can contain hazardous solvents, acids and unknown compounds. When FiveThirtyEight legally purchased hemp-derived THC products for testing, we found illegal levels of THC and a variety of mystery compounds that could not be identified. There are no federal safety testing requirements for these products, and while hemp companies occasionally publish test results, some brands have been caught using fake test documents.

A selection of delta-8 THC products
The 2018 Farm Bill opened the market for online retailers to sell hemp derivatives that can get you high.

Wilfredo Lee / AP Photo

Sales data for the unregulated hemp market is difficult to track but Delta-8-THC, the most popular of these hemp-derived intoxicants, is considered by some industry insiders to be the fastest growing product in the hemp industry. Google search data indicates that interest in these hemp-derived drugs is heavily concentrated in the American South, where conventional pot remains illegal, although hemp-derived THC is also showing up in state-regulated marijuana markets. In Washington state, regulators clarified in April that it was illegal to convert CBD into Delta-9-THC after a company admitted it was converting CBD into Delta-9-THC and selling it in the recreational marijuana market. Sales at licensed dispensaries of products containing Delta-8-THC in their titles increased over 240 percent between the second quarters of 2020 and 2021, according to the data firm Headset.

There’s still deep disagreement over whether any of these hemp-derived THC products are actually legal, but McConnell’s loophole has allowed these drugs to proliferate widely across the country. The hemp industry has quickly moved past selling just Delta-8-THC and is now offering an increasingly long list of synthetic cannabinoids that they can ship directly to your door. Meanwhile, cannabis insiders are warning that the country could be on the verge of a bigger public health emergency than 2019’s vape crisis, which ultimately hospitalized thousands and killed at least 68 people.

Yet despite the unintended consequence of the 2018 Farm Bill, Congress is not in a rush to do much about it. McConnell and his Republican co-sponsors for the Farm Bill’s hemp provision declined to comment for this story. Two of the bill’s Democratic sponsors told FiveThirtyEight that they still stand by the Farm Bill’s language.

America has entered a new era in its scattershot experiment with legal pot. In this latest chapter, McConnell has given the country synthetic pot that nobody is regulating and almost anyone can buy.


A farmer inspect hemp plants growing in a field in Kentucky
Sen. Mitch McConnell pushed for hemp derivatives to become legal in order to help hemp farmers in Kentucky. The hemp industry has been radically changed by the legalization.

Luke Sharrett / Bloomberg via Getty Images

It’s not just “THC”

Hemp might conjure images of coarse hoodies and beaded necklaces, but hemp plants can actually be made into dozens of things including building materials, paper, high-protein food, and even strong psychoactive drugs. (For his part, McConnell was very fond of his pen made out of hemp.) Hemp plants are often described as a “distant cousin” to marijuana. When McConnell was building support for hemp legalization he said it’s “an entirely separate plant” from marijuana. But this is incorrect. The line between these two types of cannabis is a legal distinction, not a scientific one. And in 2018, Congress defined hemp so broadly it included things that the layman would consider pot. 

Mitch McConnell and the Kentucky Agriculture Commissioner hold up pens made of hemp
Sen. Mitch McConnell and Kentucky Agriculture Commissioner Ryan Quarles were very excited about their pens made out of hemp in 2018.

Chip Somodevilla / Getty Images

The Farm Bill focused exclusively on Delta-9-THC (the type of THC common in marijuana), defining hemp as any cannabis plant with less than 0.3 percent Delta-9-THC. But Delta-9-THC is only one of over 100 active compounds found naturally in cannabis. Congress appeared to legalize all of these other compounds by including “all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers” in their definition of hemp.Many of these compounds are psychoactive and there are even different intoxicating versions of THC (called isomers), like Delta-8-THC or Delta-10-THC, which have the same chemical formula as Delta-9-THC but with the molecules slightly rearranged. Chemists can create even more types of cannabinoids synthetically in a lab.

Chemical structures of hemp-derived cannabidiol (CBD), Delta-8-THC and Delta-9-THC. CBD is being synthetically converted into Delta-8-THC, which has nearly the same molecular formula as Delta-9-THC, the main psychoactive ingredient in marijuana.
Chemical structures of hemp-derived cannabidiol (CBD), Delta-8-THC and Delta-9-THC. CBD is being synthetically converted into Delta-8-THC, which has nearly the same molecular formula as Delta-9-THC, the main psychoactive ingredient in marijuana.

The Farm Bill’s broad language appears to say that these other cannabinoids, many of which are potent intoxicants, are federally legal as long as they are produced from a hemp plant.

Congress apparently didn’t realize that.

“As of December 2018, I had never heard of Delta-8[-THC] or Delta-10[-THC] and I can probably assure you that McConnell and others hadn’t either,” said Jonathan Miller, a former Kentucky state treasurer and a lawyer who worked closely with McConnell’s office to write the 2018 bill. Miller said the law was intentionally written so that CBD and other non-intoxicating cannabis compounds could be legally sourced from hemp. But the authors didn’t realize “how this broader language could sweep intoxicating compounds into that [Delta-9-THC] limit.”

McConnell has spent years fighting for hemp legalization and, in particular, the legalization of CBD in an effort to appease his home state’s farmers. He made hemp legalization a campaign issue in 2013 and, when the Drug Enforcement Agency blocked Kentucky’s farmers from growing CBD-rich hemp under an earlier pilot program, the senator publicly fought the agency until the DEA backed down. 

When it came to writing the 2018 law, McConnell apparently didn’t want to take any chances with the DEA. His provision permanently removed hemp from the Controlled Substance Act and his broad definition of hemp extracts appears to have pulled its language from 2016 DEA guidance that the agency had used to shut down earlier attempts at selling CBD. 

An oversupply of CBD is further accelerating the development of these drugs by providing a cheap starting material to hemp companies, which can turn CBD into a wide variety of intoxicating compounds like Delta-8-THC or Delta-10-THC. Hemp companies are effectively solving America’s CBD oversupply problem by turning CBD into THC vape pens and gummy bears.

The country’s biggest hemp companies have largely stayed out of the Delta-8-THC craze and are increasingly worried about the hemp-derived intoxicant market. Cannabis advocates have spent years claiming hemp is not psychoactive, cannabis is safe and federal reform will keep pot out of the hands of kids. Miller said the Delta-8-THC craze has left members of Congress questioning their support for further pot reform.

“This whole Delta-8 thing has unnerved all of us because we continue to make the case that hemp is not marijuana. They hear about Delta-8 and some wavering members of congress say wait a minute,” Miller said. “I used to call myself ‘Jonathan Hemp-is-not-marijuana Miller’ because that was all I talked about. The Delta-8 issue clouds that message.”

Congress could shut down many of these products by passing a new law that narrows the definition of hemp, but those who pushed for the original legislation do not appear to be interested in ending the inadvertent legalization of THC — and some appear to be very comfortable with the situation it created.

Mitch McConnell inspects a piece of hemp at a processing plant.
Yes, you can bale hemp.

Bruce Schreiner / AP Photo

McConnell led a bipartisan effort to legalize hemp with support from Sens. Rand Paul, Jeff Merkley and Ron Wyden, Rep. James Comer, and former Rep. Jared Polis. (Paul and Comer are Republicans; Merkley, Wyden and Polis are Democrats.) None of the sponsors agreed to an interview for this story or answered written questions. A spokesperson for Polis, who was elected governor of Colorado in 2018, said that: “The Farm Bill amendments were written broadly to make hemp accessible and support scientific research. The language has supported the growth of Colorado’s well-regulated cannabis industry.”

Nicole L’Esperance, a spokesperson for Wyden, blamed the unregulated THC market on cannabis prohibition and said Wyden’s solution is to legalize all forms of cannabis and force the Food And Drug Agency to regulate the industry.

“Any legal gray area is the result of decades of the failed system of cannabis prohibition, leaving states, farmers, businesses, consumers to navigate a patchwork of laws,” L’Esperance said in an email. “These products are on the market now and should be regulated by the FDA to protect the public health like other products, and Wyden has been pushing for the FDA to act now.”

Illustration of THC by Colleen Tighe.

related: America’s Pot Labs Have A THC Problem Read more. »

But the FDA isn’t acting. The FDA is actively refusing to regulate the CBD market and has so far only issued an online warning that said the agency was “aware of the growing concerns surrounding Delta-8 THC products currently being sold online and in stores.” The FDA declined to comment for this story and instead directed FiveThirtyEight to the DEA. The DEA declined to comment as well, citing an ongoing rulemaking process for hemp products. The agency already clarified in August of 2020 that they consider hemp-derived THC to be illegal, but the agency has yet to take any noticeable action against companies selling these products, according to Chelsie Spencer, a Dallas-based attorney who specializes in hemp law.

“The lack of enforcement is a bit unfathomable because we’ve seen the DEA make statements on Delta-8[-THC] being illegal,” Spencer said. It’s possible that the DEA is afraid a judge will rule against the agency if the agency tries to shut down a Delta-8-THC producer, according to Spencer. “Either it’s a fear of an adverse [legal] decision or that they have bigger fish to fry with the opioid crisis going on.”

State governments have scrambled to regulate these unregulated intoxicants with 14 states prohibiting Delta-8-THC — which theoretically also forbids online sales in those states — and many more states considering bans or regulations for hemp-derived intoxicants.

Greg Gerdeman, a hemp entrepreneur and neuroscientist responsible for major breakthroughs in understanding cannabinoids, said it feels like some hemp companies are just trying to cash in on this legal gray area before it closes.

“I see some folks in the hemp industry and it feels like they’re saying, ‘Haha Congress! We gotcha. You said something you didn’t understand or mean but by goodness we are going to claim that it is our right to make this,’” Gerdeman said.


A vape store
Public health experts are concerned that synthetic THC could cause a public health emergency like the vaping crisis a few years ago.

Jovelle Tamayo / Bloomberg via Getty Images

“Delta-8 on steroids”

Purchasing Delta-8-THC was the easiest drug deal I have ever made — far easier than buying legal marijuana. A quick Google search found the website “Bearly Legal Hemp Co,” which advertises itself with a bear smoking a cigarette surrounded by the motto “Can’t believe its [sic] not weed.” I browsed through an online catalog of Delta-8-THC products and bought a bag of gummy bears, a pack of pre-rolled Delta-8 joints, and a vape cartridge of Delta-8-THC-O acetate, a new cannabinoid that the website promised could be “considered Delta-8 on steroids.”

THC-O, as it is more commonly called, represents a new class of molecules for the hemp industry. When hemp companies make Delta-8 THC, they are using lab synthesis to replicate a compound naturally produced by cannabis (although only found in extremely small quantities). But Delta-8-THC-O acetate is a lab-designed molecule that is never found in nature. Very little is known about THC-O’s effects but its production process is similar to how morphine is “acetylated” into heroin. In both heroin and THC-O, a chemist synthetically modifies the drug so it can deliver a stronger high. Bearly Legal warned customers to “Tread Lightly!” with this new cannabinoid because it’s “highly potent.”

A graphic of THC Vape products sold by Bearly Legal Hemp
Bearly Legal Hemp sells a variety of THC vape products, including those derived from CBD.

Bearly Legal Hemp

After selecting my products, the website sent me to an age verification process where I used my laptop’s camera to take a photo of my face and a photo of my ID card before entering my credit card to pay for the drugs. A week later the U.S. Postal Service delivered the hemp intoxicants to my door with no identification check required.

I sent the three products to KCA Labs, a Kentucky laboratory that is considered a national leader in testing hemp-derived products. Their test results showed that the Delta-8 I bought could get someone high, but it would come laced with compounds so mysterious a lab couldn’t identify them.1

The gummies had less than 0.3 percent Delta-9-THC (the federal limit for hemp), but the hemp pre-rolled joints contained 1.14 percent Delta-9-THC and the THC-O acetate cartridge contained 0.62 percent Delta-9-THC, both over the federal legal limit. The THC-O acetate also contained heptane, a toxic industrial solvent, and lead, but both were detected at low levels and below the legal limit for marijuana products in California’s regulated market, which is considered an authority on marijuana safety standards.

Bearly Legal did not respond to multiple requests for comment from FiveThirtyEight.

All three of the products also contained compounds that could not be identified by KCA Labs. Richard Sams, KCA’s scientific director who has a Ph.D. in pharmaceutical sciences, said these unknown compounds are likely synthetic cannabinoids that are created as byproducts during the CBD conversion process. “These side products are being produced in all of these reactions,” Sams said. No matter how reputable the company you’re buying your Delta-8 from, there’s likely to be some unknown compounds that come along with it. 

Kyle Boyar, a researcher at the University of California, San Diego, Center for Medicinal Cannabis Research, said the chemistry behind converting CBD to THC is very well understood but executing these reactions safely requires expertise in synthetic chemistry, something many hemp companies lack.

“It’s well established how it works but the problem is that a lot of people who are doing this are not trained on synthesis, they are just getting information off the internet and trying it to see if it works. It’s a bit worrisome and a little bit scary,” Boyar said. “It really does seem like a cash grab for a lot of people right now because of the lack of oversight.”

A display of synthetic marijuana
Marijuana products with synthetic THC are available at gas stations, convenience stores and online.

Susannah Bryan / Sun Sentinel / Tribune News Service via Getty Images

The five professional chemists we spoke to for this piece were all particularly concerned by the sale of synthetic cannabinoids like Delta-8-THC-O acetate, which are both synthetically made and synthetically designed (unlike Delta-8-THC, which can be found naturally in cannabis). These types of synthetic cannabinoids were first invented by the pharmaceutical industry and can react with our internal cannabinoid receptors in unnaturally strong ways. Synthetic cannabinoids are already a common street drug, sold under names like Spice or K2, that send hundreds of people to the hospital every year and have killed at least 26 people

Gerdeman, the cannabis scientist and hemp entrepreneur, said Delta-8-THC by itself is likely a very safe compound but he said it’s possible that hemp chemists “monkeying around in an unregulated laboratory” could accidentally create a dangerous synthetic cannabinoid without realizing it.

“A mountain of rigorous mainstream pre-clinical scientific research has taught us that Delta-9-THC is in general a very safe molecule,” Gerdeman said. “But then the Spice/K2 experience … taught us that just because a drug acts at a cannabinoid receptor doesn’t mean it’s safe.”

Synthetic cannabinoids have already shown up in the hemp market. In 2019, researchers at Virginia Commonwealth University found that four out of nine vape cartridges purchased from www.DiamondCBD.com contained 5F-ADB, a dangerous synthetic molecule that mimics cannabinoids and is already an illegal substance at the federal level. The company’s CEO told Consumer Reports that DiamondCBD was going to retest all of its products after the study was published and recall any found to contain such compounds. An AP News investigation in 2019 found even more brands selling CBD vape cartridges with synthetic cannabinoids.


Confidence Interval: Will marijuana be legal across US by 2024? | FiveThirtyEight

The industry’s new THC-O products could also lead to the same type of lung damage identified during the 2019-20 vape crisis, according to Brad Douglass, a vice president of regulatory affairs for The Werc Shop, a multi-state cannabis processor. The Centers for Disease Control and Prevention determined that a vape additive called vitamin E acetate was “strongly linked” to the lung damage and Douglass said THC-O could create the same type of lung damage.

“The belief is that the problem with vitamin E acetate in vape products is that at certain temperatures vitamin E degrades into ketenes, which are akin to a chemical warfare agent with toxic and corrosive gas,” Douglass said. “The same sort of breakdown can occur with THC-O acetate at very high temperatures.”


The FDA can fix it. Will it?

The 2018 Farm Bill explicitly gave the FDA authority over hemp regulations, but so far the agency has refused to even regulate dietary CBD products, let alone drugs like Delta-8-THC or Delta-8-THC-O acetate that are produced from converted CBD, claiming that federal law prevents them from doing so. That has created the current situation, where new forms of THC are being sold around the country with no assurance that these new synthetic drugs are free of dangerous solvents or byproducts.

Douglass said that’s a shame, because the FDA clearly has the scientific experts and regulatory ability to regulate hemp derivatives. The FDA has a long history of regulating synthetic drugs — for example, the majority of caffeine found in energy drinks and sodas is produced synthetically.

“If the FDA were serious about the mandate to regulate hemp products then they could clear up a lot of this chemistry pretty easily,” Douglass said. That’s what the scientists at the FDA are supposed to be good at — examining complicated science and determining what is dangerous and what is not. “There’s been other times that the FDA has dealt with the risks and complexities involved with synthesis.”

Sens. Wyden, Paul and Merkley introduced legislation in May that would force the FDA to regulate CBD and hemp-derivative products like Delta-8. But the law is focused on regulating, not ending, the Delta-8 market — it would not change the broad definition of hemp that was included in the 2018 bill. 

A display of CBD products at a supermarket
A surplus of CBD supply after the 2018 Farm Bill has meant it has become a mainstream product seemingly overnight. That surplus has also created a market for synthetic THC.

Derek Davis / Portland Portland Press Herald via Getty Images

Other countries have mostly avoided the pitfalls of America’s commercialize first, regulate second approach to industrial hemp. Europe’s hemp legalization outlawed all THC over 0.3 percent, not just Delta-9-THC, and didn’t include McConnell’s derivatives and extracts language, which appears to have limited the hemp intoxicant industry. And when Australia legalized CBD earlier this year, the country required that all CBD products must first be approved by its version of the FDA before they can be sold, although the agency has yet to approve any CBD products.

Unsurprisingly, individual states are taking the lead in regulating hemp while the FDA looks the other way. Oregon’s state legislature recently passed a law that is gaining support among hemp advocates as a model way to regulate cannabinoids. The law creates a new class of “adult-use cannabis” products for anything that contains THC, its isomers, or “any artificially derived cannabinoid that is reasonably determined to have an intoxicating effect.”

However, the current patchwork of state laws has allowed hemp companies to make money selling unregulated and intoxicating drugs like the one FiveThirtyEight purchased. Hemp processors continue to have access to cheap materials to make hemp intoxicants with the price of CBD isolate remaining at around $500 a kilo in August of this year, down from over $4,400 in August 2019, according to Hemp Benchmarks. New cannabinoids continue to proliferate in the market.

In August, Bearly Legal Hemp Co., the website FiveThirtyEight procured Delta-8-THC from, released a cannabinoid they call HHC. The website compares HHC directly to THC and says it is “legal in states that have banned Delta-8.” The website goes on to say that “Some people claim it gives them the same euphoric feeling, pain-fighting, and anti nausea/vomiting effects that THC does. Some just enjoy the Buzz :).”

That emoticon is what passes for quality control in the unregulated Delta-8-THC market. The incredible complexity of regulating the cannabis plant is being determined by lawyers and politicians, not the scientists who actually know what is behind these products. That means easier highs for many Americans, but also a designer drug market full of mysterious compounds and clear potential health risks to consumers. Is that what D.C. wants?

CORRECTION (Oct. 18, 2021, 3:58 p.m.): An earlier version of this article misquoted Brad Douglass. When speaking about the problem with vitamin E acetate in vape products, he warned about the substance degrading into ketenes, not ketones. Those ketenes are akin to chemical warfare agents, but are not actually chemical warfare agents.

CORRECTION (Oct. 20, 7:11 p.m.): An earlier version of this article included a chart with inaccurate depictions of the chemical structure for CBD, Delta-8-THC and Delta-9-THC. It also suggested that Delta-8-THC has “nearly” the same molecular formula as Delta-9-THC, when it actually has the same formula but a different structure.

Footnotes

  1. KCA Labs ran two tests on each product.

Lester Black is an independent journalist and the former cannabis columnist for the Seattle newspaper The Stranger.

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