To some degree, getting high on hemp – yes, you can do that – is reminiscent of bootlegging in the United States during Prohibition. There was a federal ban on alcoholic beverages from 1920 to 1933, but that didn’t stop people from drinking. (Actually, alcohol consumption increased by up to 70% within years of Prohibition’s enactment.) Similarly, although marijuana is banned by the federal government, that hasn’t stopped people from consuming it. Granted, marijuana has myriad medical benefits to fuel this rebellion, whereas anti-Prohibition civil disobedience asserted each person’s right to party. (Cue the Beasty Boys song.) But the parallel is striking nonetheless.

Time has proven repeatedly that when the forces of supply and demand clash with the forces of law enforcement and social justice, free will tends to adapt to survive. Case in point: hemp that gets you high … legally.

Image Courtesy of the State Library of Massachusetts/ CreativeCommons CC BY-NC 2.0

Image Courtesy of the State Library of Massachusetts/ CreativeCommons CC BY-NC 2.0

The Legal Loophole

Tetrahydrocannabinol (THC) is the primary psychoactive ingredient extracted from the cannabis plant, and different species of cannabis contain different kinds and different percentages of THC. The two kinds of THC relevant to circumventing the federal ban on marijuana are delta-9 and delta-8. (More on that later.) If the plant species contains no more than 0.3% delta-9 THC, it is classified as hemp and is legal under U.S. federal laws; if it contains more than 0.3% delta-9 THC, it is classified as marijuana and is illegal under those laws.

Now, for argument’s sake, let’s say that a person needs between 10% and 20% THC in a cannabis product in order to get high. If a person consumes 15% delta-9 THC through marijuana, they’re a federal criminal for doing so. But if that same person consumes 15% delta-8 THC through hemp, they’re a law-abiding citizen. Of course, delta-8 gets you only half as high as delta-9 does, but the point is, it’s a legal half-high. So, guess what’s happening out there. (Don’t worry; I’ll wait.) People are getting high on hemp-derived THC.

Does the federal government know they’re doing this? Of course! The U.S. Food & Drug Administration even published an article condemning this practice for “putting the public health at risk.” Nevertheless, it’s still federally legal to get high on hemp. That could change once the key document determining the fate of cannabis’s legality, the 2018 Farm Bill, undergoes revisions and is renewed in late 2023 though.

The Biology of Hemp-Derived THC

The legislation-driven means of differentiating hemp from marijuana exists only to codify crime. To the federal government, hemp is good, and marijuana is bad; to Mother Nature, hemp is marijuana, and marijuana is hemp. Both names apply to the cannabis subspecies sativa, which means the two plants are biologically indistinct.

Also, only delta-9 THC is regulated federally, despite the fact that other kinds of THC exist in nature and have psychoactive properties like delta-9 does. The sativa subspecies itself contains multiple kinds of THC, for instance. So, as long as someone grows sativa that the government calls “hemp” and not “marijuana” (i.e., contains no more than 0.3% delta-9 THC), they can exploit unregulated THC, namely delta-8. However, the scientific process behind generating delta-8 from hemp is so complicated that it’s controversial.

A hemp field in Côtes-d'Armor, Brittany, France, which is Europe's largest hemp producer as of 2022 Photo by Barbetorte -, CC BY-SA 3.0,

A hemp field in Côtes-d’Armor, Brittany, France, which is Europe’s largest hemp producer as of 2022 Photo by Barbetorte -, CC BY-SA 3.0,

The Controversy of Delta-8 Alchemy

To obtain enough delta-8 to achieve the intended psychoactive effects, this kind of THC is usually manufactured from hemp-derived cannabidiol (CBD). This is where concerns arise even among cannabis advocates. The chemicals involved in dissolving hemp-derived CBD are at the manufacturer’s discretion, and carelessly chosen solvents (e.g., paint thinner) can result in harmful byproducts. For that reason, a scientist at a hemp-testing company even described delta-8 as a mythical entity simply because of how drastically the natural ingredients are modified.

That said, some have expressed cynicism over opposition to delta-8, insinuating that those who warn against delta-8 stand to benefit financially from its prohibition. The legal cannabis industry is overwhelmed by regulations and taxation that are already making business excessively challenging. So, to now have a competitor free of such oppressive restraints is something they could, conceivably, be unwilling to tolerate.

As with anything else, keep in mind any conflicts of interest that might be driving the results of studies you read on delta-8 – regardless of the stance taken by the source. And, it goes without saying, don’t try delta-8 without first consulting your physician, therapist or anyone else involved in ensuring your well-being. 

If you’ve gotten your physician’s approval to try delta-8 as an affordable, legal alternative to delta-9 for its medical and/or recreational benefits, be an educated consumer. An excellent source to consult is “Delta-8 Safety in 2022: The Ultimate Guide” by Hometown Hero.

Image by greenserenityca from Pixabay

Image by greenserenityca from Pixabay

The Future for Sativa THC

When Prohibition proved not only impossible to enforce but also responsible for the rise in syndicated crime, among other things, politicians capitulated and reversed course. The 18th Amendment to the U.S. Constitution, which had enacted Prohibition, was repealed by the 21st Amendment.

For similar reasons, the 2018 Farm Bill might ultimately take a softer stance on THC after the legislation’s 2023 renewal. Although it’s entirely possible that hemp’s exemption from the Controlled Substances Act will be revoked under the 2023 Farm Bill, the reverse is actually anticipated. In a Cannabis Business article, an official in the National Industrial Hemp Council explained why he expects the 0.3% delta-9 THC limit to be raised to 1%. To summarize, farmers are being held to standards beyond their control, tasked with regulating nature with nearly impossible precision. (Humans can only command plants to behave so much, after all.) And farmers are the core constituency ostensibly protected by the Farm Bill, which dates back to 1914 and expires every five years.

So, if the 2018 Farm Bill has proven unrealistic in its enforcement among the voters of greatest value to it, the law – not the farmers – will need to adapt to survive. Until then, however, THC consumers and manufacturers will continue to crawl through the delta-8 loophole to live their lives as they see fit. Laws can’t change what consumers demand, and in a free market, suppliers will always capitalize on demand. Such was the case with alcohol, and such is the case with THC.

Kathleen Hearons is a writer, editor, linguist and voice over actor from Los Angeles. She specializes in creative writing and research-intensive analysis and reporting.  






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