New THC rules and definitions  for Ohio regarding Delta-8 are expected possibly in the early part of next year; rules that could potentially upend a lot of grey market CBD businesses across the state.
Delta-8 is an isomer of Delta-9, the traditional compound for THC, both found in cannabis plants. Credit: Crystalweed / Unsplash

New tetrahydrocannabinols (THC) rules and definitions for Ohio regarding Delta-8 are expected possibly in the early part of next year; rules that could potentially upend a lot of grey market CBD businesses across the state.

Last June, the Ohio Medical Marijuana Control Program (MMCP), the agency that regulates cannabis, issued guidelines on what exactly qualifies as THC. The proposed rules follow those guidelines to clarify how THC isomers and analogs are defined.

Greg McIlvaine, senior policy advisor for the Ohio Department of Commerce, which has oversight over cultivators, processors and testing labs, told Grown In he would submit the proposed rules for review soon. The review process is typically 65 days but could be extended.

In 2017 during the state’s original rule writing process, the THC definition adopted was specific to Delta-9 THC and 87.7% of the technical amounts of THC-A, according to McIlvaine.

“At that time [during the original rule writing], the THC isomers and analogs, the emergence of Delta-8, Delta-10 and others were not contemplated and were not really prevalent in the market during the initial rules’ development,” said McIlvaine.. 

The recent emergence of Delta-8 in the gray market spurred on the action from Ohio regulators.

“We wanted to update that definition to clarify and basically incorporate the THC isomers and analogs within that definition so that it’s not specific to Delta-9 and (also) captures Delta-8, Delta-10, really any artificially or naturally derived or instructional, optical, geometrical isomers or analogs of THC.”

Ohio MMCP has a 70% THC cap for manufactured products and a 35% THC content for flower. All the isomers will fall under the definition of the cap.

Delta-9 is the traditional compound for THC, a cannabinoid found in large, naturally occurring amounts in marijuana plants and is the key ingredient sought in cannabis sales.

On the other hand, Delta-8, an isomer of Delta-9, or a molecule with the same number of atoms of each element but with a different atomic arrangement, is also naturally occurring in marijuana plants, but generally in trace amounts. To obtain significant amounts of Delta-8, cultivators need to distill the plant, and refine the resulting distillate, emphasizing for Delta-8 over Delta-9.

“You have these novel cannabinoids and as they emerge in order to try to more broadly capture those, a definition update was needed,” McIlvaine said.

Delta-8 is currently legal and unregulated in Ohio with online and retail stores operating within the state and is turning into a huge industry across the country. Much of it comes from underground producers, who are poorly regulated or not regulated at all.

Often, Delta-8 is sold as a concentrate in manufactured products such as vape cartridges, said McIlvaine.

Mary Smith, deputy director of NORML Ohio-Appalachia approved of the proposed new THC rules and definition changes saying, “It’s just another step for them to take control of the entire industry before the industry takes Ohio.”

Smith characterized unregulated Delta-8 as an easily accessible product for people interested in cannabis, who often don’t understand the difference between Delta-8 and traditional Delta-9 cannabis products.

“I deal with a lot of people that have questions about how to move into the medical side of cannabis,” Smith said. “We have thousands upon thousands of people in this state that have ailments and issues that have been told by their friends and family their issues can be helped by cannabis. But when it comes down to how to use it, they have no idea.”

Delta-8 is not just cannabis, said Smith, it’s cannabis mixed with other, unregulated compounds built into it and therefore in her opinion, is not good for consumers.

“I don’t feel anybody should use anything under the name of cannabis that isn’t natural,” Smith said.

Three state government agencies are responsible for the operation of Ohio’s Medical Marijuana Control Program.

The Ohio Department of Commerce is responsible for overseeing medical marijuana cultivators, processors and testing laboratories. The State of Ohio Board of Pharmacy is responsible for overseeing medical marijuana retail dispensaries, the registration of medical marijuana patients and caregivers, the approval of new forms of medical marijuana and coordinating the Medical Marijuana Advisory Committee while the State Medical Board of Ohio is responsible for certifying physicians to recommend medical marijuana. 

According to the Ohio MMCP guidelines issued in June and updated in July:

  • The exact amount of Delta-8 must be shown on the packaging
  • The label must state Delta-8-THC and not just “D-8” or “Delta-8”
  • Producers, cultivators and processors must test for Delta-8.

Once the Joint Committee on Rule Making approves the new rules, the definition will be implemented for all medical marijuana licensees.

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Brad Spirrison is a journalist, serial entrepreneur and media ecologist. He lives in Chicago with his son. Interests include music, meditation and Miles Davis.