WSLCB Policy Statement on Delta-8

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The Washington State Liquor and Cannabis Board issued a Policy Statement, effective April 28, 2021, in an effort to provide clarity on the State’s regulation of THC in forms other than Delta-9.[1] Specifically, the policy statement addresses “the conversion of CBD, hemp, or both to Delta-8 THC, Delta-9 THC, or any other marijuana compound that is not currently identified or defined in the RCW, the WAC, or both.” The need for such a policy statement arose after the WSLCB discovered that some marijuana items in the i-502 regulated market were labeled to indicate that they contained cannabinoids other than Delta-9 THC as well as CBD additives. At present, the WSCLB only pre-approves labels for marijuana-infused edible products.

The LCB has two separate concerns that form the basis of this Policy Statement: 1) that CBD isolate is being genetically or chemically altered, resulting in “synthetic equivalents of substances contained in the cannabis plant,” and 2) the presence of compounds other than Delta-9 THC in the i-502 regulated market, most commonly in the form of Delta-8 THC. In conflict with these issues is the fact that the only products permissible for sale in the i-502 system are marijuana products consistent with RCW 69.50.325(3)(a).

RCW 69.50.204 governs Schedule 1 controlled substances, and RCW 69.50.204(c)(30)(i) defines THC as: “tetrahydrocannabinols naturally contained in a plant of the genera Cannabis, as well as synthetic equivalents of the substances contained in the plant….and their isomers with similar chemical structure…such as the following” with §A encapsulating 1 – cis – or trans tetrahydrocannabinol, which PS-21-01 indicates being in reference to Delta 9-THC, and §B detailing 6 – cis – or trans tetrahydrocannabinol, which PS-21-01 indicates is in reference to Delta 8-THC. Therefore, naturally occurring tetrahydrocannabinols are Schedule I controlled substances, as well as their synthetic equivalent.

RCW 19.86.020 governs unfair or deceptive practices within the i-502 market and RCW 69.50.455 defines synthetic cannabinoids in relation to these unfair or deceptive practices, which states that it is a deceptive practice for any person or entity to manufacture or sell “any product that contains any amount of synthetic cannabinoid.” RCW 69.50.455(1). RCW 69.50.455(2) defines “synthetic cannabinoid” as including “any chemical compound identified in RCW 69.50.204(c)(30),” which, as explained further above, does in fact encapsulate both Delta 9-THC and Delta 8-THC as controlled substances, however, it does stipulate that a substance listed as Schedule I may be “specifically excepted by state or federal law.” As Washington State has a legalized adult-use marijuana market, RCW 69.50.360 allows room for certain activities that are not considered criminal offenses under state law, which includes the sale of marijuana in licensed i-502 facilities to persons twenty-one years of age or older. Thus, the exemption available in Washington State’s Schedule I controlled substances list (found in RCW 69.50.204) that allows for a substance to be “specifically excepted by state law” does in fact apply to both Delta-8 and Delta-9 THC.

At this time, the LCB still prohibits any synthetic cannabinoids from entering the i-502 market. The Policy Statement expressly allows for “Delta-8 cultivated in licensed LCB facilities that is derived from marijuana and not otherwise synthesized [to] be added to marijuana products produced and processed in the licensed marijuana system.” Currently, however, Delta-8 THC has only been derived through chemical and/or the genetic modification of marijuana produced in licensed LCB facilities and as such is still prohibited from entering the i-502 market in any manner.

Lastly, the Policy Statement discusses CBD in the i-502 market. While RCW 69.50.326 allows for “marijuana producers and processors [to] use a CBD product as an additive,” this is only permitted expressly “for the purpose of enhancing the cannabidiol concentration of any product authorized…under chapter 69.50 RCW.” The Policy Statement makes clear that “derivatives, extracts, cannabinoids, isomers, and CBD isolate from hemp or other sources that is genetically or chemically altered into compounds would be considered synthetic equivalents of the substances contained in the plant” and as such are prohibited from being either produced or processed in licensed LCB facilities as well as being sold in licensed marijuana retail stores.

Ultimately, the effect of the LCB’s Policy Statement is to reinforce the fact that only THC cultivated in a licensed marijuana facility may be produced, processed, or sold within Washington State’s i-502 system. Per the LCB, it remains impermissible to genetically or chemically alter any compounds of either marijuana or the hemp plant, regardless of the end result or intended product. As a result, while Delta-8 THC may eventually be cultivated as a naturally-occurring compound in marijuana, much of the Delta-8 THC products may be removed from the i-502 market as their present derivation stems from the genetic modification of either hemp or marijuana, and is, according to this policy statement, impermissible in Washington State’s legalized marijuana market.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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