On a recent Friday night at Main Line Brewery, a rock band played on stage, people were dancing and drinking, and the skunky scent of marijuana was in the air. The lead singer joked that she was going to get a contact high from the several people who were smoking identical tightly rolled cigars.
A tent set up outside the brewery was selling the cigars and other products, where saleswomen spoke in terms long associated with cannabis: “indica,” “sativa,” “body high,” “munchies.”
Customers lit the $15 blunts on site, while others wondered: Is this legal? And is it a glimpse into Virginia’s future, which is on the path to legal recreational marijuana sales in a couple of years?
The latest loophole in marijuana law is known as delta-8, a new sort of “it is, but it isn’t” product flying off the shelves in smoke shops and convenience stores in numerous forms: flowers, edibles, oils, vape cartridges, lotions.
Delta-8 looks like pot. It smells like pot. Users say it feels like pot. But the key to its success at this moment in time is a matter of chemistry: it’s not pot, which in Virginia can’t legally be sold for another two years.
Delta-8 tetrahydrocannabinol, also known as delta-8 THC, is a psychoactive substance made from hemp. The substance that creates a stronger high in regular marijuana is known as delta-9 THC.
In 2018, the Federal Farm Bill legalized the production of hemp as an agricultural commodity while removing it from the list of controlled substances. The Farm Bill legalized hemp containing less than 0.3% delta-9 THC, but the statute was silent on delta-8.
Anthony Gregory, owner of The Dispensary, a shop in downtown Richmond that has been selling delta-8 products since April, described delta-8 as a milder high than marijuana.
“Delta-9 has a stronger response cycle. For some people, it’s just too much. It’s like someone who can drink a Miller, but they can’t drink a Guinness or hard alcohol,” Gregory said. “With delta-8, people who suffer from anxiety and insomnia can take a delta-8 product and it helps them calm down. It lessens their anxiety, helps them fall asleep and stay asleep.
“It’s a softer psychoactive response, without the paranoia or fogginess of delta-9.”
The Dispensary at 5 W. Main St. is a clean, bright shop with a glass case featuring its products and jars full of ripe, green flower.
The Dispensary sees a steady stream of customers, buying everything from gummies and vaporizer cartridges to pre-rolled joints and full hemp flower sprayed with delta-8. The most popular items in the store are the flower, the cartridges and the edibles, according to Gregory.
Prices run the gamut: $10 for a gram of the flower, $30 for an eighth, $60 for a quarter and $110 for half an ounce. Pre-rolls cost $12.
“Once word got out — not only about our products, but the quality — people were very interested. And our price points can’t be beat,” said Gregory, noting that delta-8 sells for about half the price of marijuana.
Business has been so strong that Gregory opened a second location at 10338 Iron Bridge Road in Chesterfield County.
“We’ve had people coming from as far away as North Carolina and Florida, as well as Virginia Beach, Hampton Roads and Charlottesville. The demand is there,” Gregory said.
But there is concern about how safe it is. Texas lawmakers tried to ban it and 18 states have banned or restricted it, but it’s still allowed in roughly 30 other states, according to the CBD information website CBDThinker.
Part of the concern comes with how delta-8 is made.
Because delta-8 and a similar psychoactive ingredient known as delta-10 are found in very low concentrations in hemp, extracting them out of the plant is not economically feasible.
Instead, it is converted in a lab using acids and solvents to create a higher yield of delta-8, said Dr. S. Rutherfoord Rose, director of the Virginia Poison Center at VCU Health.
Delta-8 is then sprayed on the hemp plant to create the flower and pre-rolled joints that are sold as a sort of marijuana lite. Or the chemical can be blended into tinctures, gummies and vapes.
“Medically, the problem with delta-8 is that it’s not pure; it’s not derived from the plant itself. It’s made in a lab from CBD. There is potential for lots of unknown byproducts in it: maybe delta-10, maybe delta-9 and maybe some residuals of these other chemicals that are used to make it,” Rose said.
“I think people need to know these things are being made in unregulated labs,” he said. “It’s sort of ‘buyer beware.’”
As for sales of marijuana in Virginia, the shift in power at the Executive Mansion and the House of Delegates could bring radical changes to the state’s marijuana legalization process, but won’t halt it altogether.
Gov.-elect Glenn Youngkin hasn’t offered much detail on the subject, but during his campaign, stated firmly that he would not seek a repeal of the Democrats’ legislation.
“[Youngkin] suspects that revenue projections from legalization are way overstated, as they have shown to be in other states. With legalization, real emphasis must be placed on ensuring minors do not use this drug or have access to it,” said Youngkin campaign spokeswoman Macaulay Porter in a statement.
She added that Youngkin will be focused on “re-establishing Virginia’s commitment to public safety,” among his priorities.
House Minority Leader Todd Gilbert, who is in line to become the next House speaker in January, said during a conference call with reporters that the path toward legal sales laid out by Democrats would likely change “dramatically,” including potentially speeding up legal sales.
Neither Youngkin nor Gilbert has spoken publicly about issues with delta-8. But a panel of lawmakers tasked with studying marijuana legalization in Virginia has signaled legislation is in the works to put guardrails around the sale of delta-8.
Jenn Michelle Pedini, the executive director of Virginia NORML, a marijuana legalization advocacy group, said the group is working with Del. Dawn Adams, D-Richmond, on legislation to regulate delta-8.
“The point is that when delta-8 products are sold, they are held to the same consumer health and safety standards as other regulated cannabis products in Virginia. The answer is not to criminalize them, but to instead require regulations so that the products are safe, labeled and only sold to those who are 21 and older,” Pedini said in an interview.
“Consumers who are purchasing these products really have no idea what they are consuming,” Pedini added.
At the same time, Pedini urged lawmakers to avoid a sweeping ban of the drug or subject consumers to criminal penalties: “Criminalizing delta-8 is not the answer. That’s a step backward.”
Pedini, who is advocating for the state to speed up legal sales by tapping existing medical marijuana dispensaries, said states with regulated adult use markets that haven’t banned delta-8 aren’t seeing booming sales of delta-8 or even wide availability of the product, a sign that people would rather buy regular marijuana if it’s available.
Dylan Bishop, a lobbyist with the Cannabis Business Association of Virginia, said the group similarly supports “reasonable regulation,” including limiting the sale of delta-8 products to people 21 and over.
“We think that they should be appropriately labeled. You know, ‘This product is a hemp-derived product that may cause psychotropic effects. Please do not operate heavy machinery. Please keep out of reach of children,’” he said Wednesday during a meeting of the panel tasked with studying marijuana legalization.
Sen. Jeremy McPike, D-Prince William, and a key player in the debate over the new regulated market, cautioned against taking action before knowing more about delta-8, including how to set limits on dosage for it and other THC products.
McPike pointed out that delta-8 does occur naturally in the hemp plant, though minimally, but said he’s heard that Virginia’s soil is particularly favorable for it.
The rise of delta-8 is reminiscent of the synthetic marijuana boom a decade ago, where synthetic cannabinoids were legally sold under names like K2 and spice because of a similar loophole in the chemistry. Those drugs were banned in 2012 due to concerns about their safety under the Synthetic Drug Abuse Prevention Act.
In August 2020, the Drug Enforcement Administration issued new regulations aimed at clarifying the Farm Bill and defined delta-8 as a Schedule 1 drug.
Reports of exposure to delta-8 are on the rise. This year, the Virginia Poison Center reported 32 exposures to the product and none in previous years; 70% of those patients were treated in a hospital. Because delta-8 is sold in gummies and cookies, some children have ingested it accidentally and ended up in the hospital.
There have been no fatalities from delta-8, unlike overdoses from drugs or opioids.
As for the legality of delta-8, it seems to exist in a gray area. While making marijuana analog drugs is illegal, CBD is legal and it’s made from a legal product, therefore delta-8 is legal, according to makers of the product.
“It’s very safe,” The Dispensary’s Gregory said of delta-8 and his products. “I have everyone from 21 to age 70 coming to me. They are professionals, athletes, veterans. My clients are coming with true medical problems that can be remedied with the plant.”
“You’re just not sure what’s in delta-8,” said VCU’s Rose. “And that is cause for some concern.”