This Cannabis ‘Lite’ Exists in Legal Limbo and Is Being Sold to Eager Buyers

Delta-8 THC can get you high but skirts Wisconsin’s stringent cannabis laws. How long until the smoke clears?

Wisconsin is an island in a sea of legal weed. Drive south to Illinois and you’ll be greeted by billboards advertising recreational marijuana at nearly every exit. Sail east to Michigan and you can buy bud to your heart’s content – as long as you’re 21 years of age. To the west, Minnesota allows marijuana sale and possession for medicinal purposes.  

In Wisconsin, getting high remains a punishable offense, though we’re not a completely green-free state, thanks to the 2018 federal farm bill. Hemp-based CBD products – gummies, vape cartridges, tinctures, dog treats or infused beverages – are still legal to produce and sell here despite their trace amounts of THC. 

CBD doesn’t get you high, but there is another hemp-derived compound that can cause psychoactive effects: Delta-8 THC. It’s closely related to the “high”-causing compound in marijuana, Delta-9 THC, except its origin from hemp keeps it outside of Wisconsin’s legal restrictions on cannabis.  

“I don’t think it should be surprising to anyone that Delta-8 would emerge in the American marketplace now,” says Lucas Richert, a professor at UW-Madison who studies the history of drugs. The creation of a substance that skirts marijuana restrictions while offering a similar result is a logical innovation; it allows consumers to meet their needs when the law doesn’t provide. 


 

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The future of Delta-8 in the Badger State is murky, just like its current legal status. Under the farm bill, hemp-derived Delta-8 isn’t illegal – but it’s unclear if it’s fully legal, either. Sellers have to wrestle with a lack of regulation to ensure that their products are safe for consumers. And the legal gray area that Delta-8 occupies marks an uncertain chapter in hemp’s long history, especially in states where cannabis remains illegal.

SIDE BY SIDE, the chemical structures of Delta-8 and Delta-9 look almost identical. Just one carbon double bond in Delta-9 flip-flops to a different spot to make its sister compound. Both attach to the body’s endocannabinoid system in similar ways, but the effects of Delta-8 are more subtle for many users. 

In ordinary weed, Delta-9 is to blame for the classic anxiety or paranoia that comes with getting too high. But Delta-8 is known to cannabis connoisseurs as a less anxiety-provoking substance that causes more of a body high.  

And that gentleness may explain why many specialty CBD stores today also carry Delta-8 products. Matt Walsh, the co-owner of CBD American Shaman in Waukesha, says many people come to his store looking for help with sleep issues, pain and anxiety. “Some people will take it to get high, but Delta-8’s a weak THC. That’s what I kind of like about it,” he says. “It doesn’t cause a lot of psychoactivity – there’s mild dopamine release, but in general, it just makes you feel better. It’s kind of mood enhancing.” 

Delta-8 isn’t processed the same way CBD is. Rather, CBD is extracted from hemp, then dissolved in an acid to change its chemical structure. Naturally occurring Delta-8 exists in small quantities in hemp and was first discovered in 1965. But it wasn’t until recently that the cannabis market exploded with products using Delta-8 as a main psychoactive ingredient. 

Some states, namely a few with legal cannabis, have banned Delta-8 products outright. But in others like Wisconsin, you can get Delta-8 everywhere, from specialty CBD shops to grocery stores and gas stations. That doesn’t mean all products are created equal, though.  

Since the industry is unregulated, Walsh cautions that consumers need to be aware of what they’re buying. At stores like his, products go through third-party lab testing to verify their quality and cannabinoid contents – a common practice for CBD products, too.  

Quality Delta-8 products should be clearly labeled with information about what’s in them, provide warnings, and have links to their lab reports. It’s a red flag if these details are omitted, Walsh says, and he advises being wary of a product if there isn’t much available online about the company that makes it.  

“The more complete information you’re able to get from doing even a small amount of research will probably lead you in the right direction,” he notes. 

EVEN WITH self-policed safety measures in place, Delta-8 is still the wild west of cannabis. Though the substance is exploding in popularity, little academic research exists on it. The studies that do are decades old and provoke more questions than answers. 

Shanna Babalonis, a professor of behavioral science at the University of Kentucky, co-authored an academic review of existing Delta-8 research in the journal Cannabis and Cannabinoid Research in October. She found … very little. The most recent of just two studies was in 1995. While both had small numbers of participants, neither reported any adverse effects.  

Adding to that body of research, she says, will be a challenge because the federal government treats cannabis the same as drugs like heroin and MDMA – and Delta-8 has even more barriers than garden-variety cannabis. “It’s just like a jigsaw puzzle of regulatory pieces that all have to fit together,” Babalonis says. “And none of them are easy.” 

But Babalonis feels an urgency to fill the void of useful information because an unregulated market means anyone can release products that aren’t properly labeled, might contain contaminants, or are too easy for children and pets to get into. “Like any drug, it’s buyer beware, to be honest,” she says.  

Poison control centers across the country started tracking Delta-8 related calls in 2021, and 661 such cases were called in from January to July. For comparison, in all of 2019, poison control centers handled 15,073 calls related to any cannabis or synthetic cannabinoids.

Of the 2021 Delta-8 calls, 39% involved children. For cannabis in general, overdoses can be extremely unpleasant, though uncontaminated products are generally not deadly. But in children, Babalonis says, the risk of severe symptoms and hospitalization can be much higher than adults.”

Modern, federal cannabis law still classifies the drug as a Schedule I substance – meaning that in the eyes of the DEA, cannabis has no accepted medical use. But of the recent research that exists on cannabis, results are overwhelmingly positive: It alleviates the symptoms of patients with cancer, chronic pain and various mental health conditions. Even when it isn’t effective, the risks of using it are very low.  

And that’s where Delta-8 comes in. As the market for cannabis-related products grows, so does innovation as people wait for regulation to catch up. “We’re in slightly different, maybe more uncharted territory than cannabis industry individuals [were] 20, 30, 40 years ago,” says Richert, the UW-Madison researcher. “The scientific understanding of the plant has advanced, meaning our understanding of the cannabinoids has increased.”  

Other cannabinoids, explains Wauwatosa-based hemp entrepreneur Erin Kelly, are starting to appear as well. “Delta-10 will be the next thing we’ll be talking about,” she says. Similar to Delta-8, it’s close in chemical structure to Delta-9 (and offers a slightly different high) and isn’t banned in Wisconsin.  

The language that legalized CBD in the 2018 farm bill stipulated only that hemp plants have to contain 0.3% Delta-9 THC or below; there was no mention of other cannabinoids like Delta-8 or Delta-10, hence the legal gray zone. However, synthetically derived or chemically synthesized drugs of any kind are illegal on both a state and federal level. 

Delta-8’s legality in the state remains an open question, according to a July 2021 brief from the Wisconsin Legislative Council. If the process of creating Delta-8 from hemp-derived CBD is legally determined to be synthetic, only then would it be considered a Schedule I drug. “Until regulators or lawmakers provide further clarity, the legality of Delta-8 THC appears to depend significantly on the nature and characterization of the process used for its production,” the authors of the brief write.  

FOR THE TIME BEING, it looks like Delta-8 is here to stay. And for those in the wellness industry, it offers an opportunity to provide products to help others manage their health within legal limits.  

Kelly, who works at CBD American Shaman and runs a pop-up shop called Kelly’s Greens, says she got into the CBD and Delta-8 space because she wanted to help people. She’s enrolled in a virtual cannabis education program at Saint Louis University and hopes to one day open a brick-and-mortar store in Milwaukee.  

“We just need to be able to move forward with medicinal marijuana and legalize, so that we can do more research and be able to stand behind it,” she says. That’s the key to getting people affordable, accessible medicine, she explains. 

To Walsh, who has carried Delta-8 products in his store since February, the rush hasn’t really happened yet. He believes the substance’s murky legality has hurt consumer confidence. “I pray for regulation in this industry, [where] we’re able to ensure a consistent, quality, safe product,” he says. “Then, the people should flood in. [But] it hasn’t happened yet.” 


Your Green Glossary 

Cannabis: Short for the Cannabis sativa plant. In legal terms, cannabis is any Cannabis sativa plant that contains more than 0.3% THC.  

Hemp: This is also a term for Cannabis sativa, since cannabis and hemp plants are the same species. However, industrial hemp is bred to have 0.3% or less THC.  

Cannabinoids: Molecular compounds found in Cannabis sativa plants, such as Delta-9 THC and CBD. Delta-8 THC is known as a minor cannabinoid since it occurs naturally in smaller amounts. 

Tetrahydrocannabinol (THC): The main psychoactive component found in Cannabis sativa plants. In other words, THC is what causes a high when using cannabis products. 

Cannabidiol (CBD): The main non-
psychoactive component in Cannabis sativa.


 

This story is part of Milwaukee Magazine‘s January issue.

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