In the world of cannabis, there might not be a more confusing or complicated issue than Delta-8. For about five years now, the psychoactive substance derived from the hemp plant has fallen outside virtually any regulatory guardrails, including those of the state medical marijuana program.
The products have proliferated across the state in smoke shops, CBD stores, gas stations and over the internet in recent years without regulation or even a minimum age to buy the products over the counter. Drive down U.S. Highway 67/167 and you’ll see a billboard advertising Delta-8 gummies and other products at a shop in Searcy.
That’s about to change.
Led by Sen. Tyler Dees (R-Siloam Springs) and Rep. Jimmy Gazaway (R-Paragould), the state legislature voted to ban all Delta-8 products. Gov. Sarah Sanders signed the bill into law on April 11.
From committee room to committee room at the state Capitol, the issue generated lively debate from Delta-8 advocates and business owners who wanted to protect the products that support their bottom lines and provide what they described as medicinal benefits to users.
Business owners and advocates, including two mothers of young children, testified against banning Delta-8, saying the products have helped their children battle serious diseases.
How did we get here?
It all started in 2018 when Congress passed the Farm Bill, legalizing hemp production for the first time since 1937 and allowing farmers to grow the marijuana-adjacent plants as long as they had a Delta-9 THC content of 0.3% or below. Delta-9 is the THC that you normally find in marijuana, including that sold in medical marijuana dispensaries.
Hemp plants produce flowers that have nonpsychoactive cannabinoids like CBD and stalks that can be used to make a variety of products from textiles to home-building materials.
The flowers produce a little bit of Delta-8 THC and a lot of CBD, which scientifically inclined individuals figured out could be altered into Delta-8 THC, which is psychoactive and similar to marijuana.
The Farm Bill did not address Delta-8, creating what some have seen as a loophole that has permitted psychoactive products similar to marijuana to be sold outside the state’s highly regulated legalized marijuana markets.
Without regulatory oversight, there has been no age limit to buy Delta-8 products and nothing to stop the products from being marketed to children.
That wasn’t OK with Gazaway and Dees, who saw Delta-8 as a danger to children that must be addressed.
Battle at the Ledge
It was no surprise that Delta-8 was addressed during the recent legislative session, but some wondered if the General Assembly would take the route of regulation, allowing the products to exist with some restrictions, or the route of an outright ban. Gazaway led the prohibition effort at the request of state Attorney General Tim Griffin, while Rep. Jeremiah Moore (R-Clarendon) introduced a bill for Delta-8 to be regulated by the Arkansas Tobacco Control Board.
Gazaway said in a recent phone interview he wasn’t that familiar with Delta-8 until the attorney general’s office asked him to spearhead the effort in the House.
“Apparently, there had been lots of reports come in to the attorney general’s office and other places about children who have suffered adverse effects from Delta-8 and accessing these substances at convenience stores all over Arkansas,” Gazaway said.
Gazaway said there was some debate among legislators about which way to go. He and Dees each said by phone recently that they were swayed toward an outright ban of the products by the fact that Arkansans rejected recreational marijuana at the polls in November. If Arkansans wanted recreational marijuana, they concluded, they would have voted for it.
In the end, the effort to ban Delta-8 products won the day and Moore’s regulatory bill was never heard in committee.
The first went to the Senate where it passed before setting off a firestorm in the House when advocates noted that the bill would have essentially banned nonpsychoative cannabinoids like CBD, CBN and CBG. The bill was later amended to protect those products.
Delta-8 advocates testified before the House Rules Committee, saying the products have medicinal benefits and that some customers like that they didn’t need a medical marijuana card to buy them.
The bill eventually passed the House and Senate easily before being signed into law by the governor in April.
The new law includes a trigger mechanism that would go into effect if the Delta-8 ban is rejected by a court. In that case, the products would be legal but regulated, although Gazaway said he does not believe it will come to that.
“From the attorneys in the governor’s office to the attorneys in the attorney general’s office, everyone I talked to believes that the ban will be upheld by a court and the regulation piece was unnecessary,” Gazaway said.
Advocates speak up
Many Delta-8 advocates spoke up during the hearings at the Capitol, including Roger Crawford, who owns CBD stores in Hot Springs and Hot Springs Village. Crawford said he already imposes a minimum age of 21 to purchase the products and lamented that he was being lumped in with some bad actors selling Delta-8 inappropriately.
“We’re wanting regulation,” he said in a recent interview. “We’ve been screaming ‘regulation’ for years. We want a 21-plus age restriction.”
After the bill passed the legislature, Crawford and his partner, Amy Willtrout, penned a letter, asking the governor to veto the bill. Crawford and Willtrout, who own the CBD stores together, said the bill would endanger businesses and consumers.
“There is no one that wants to rid the market of the synthetic dangerous chemicals that are targeting Arkansas children and young adults more than we do,” Crawford and Willtrout said in their letter.
The pair also said the new law would lead to “bad products being relabeled and repackaged under a different name” and that the bill does not ban other synthetic forms of THC. Dangerous products will still proliferate in the state, they said.
Audrey White, one of Crawford’s customers, told the House Rules Committee that she has given her 4-year-old son, Colton, Delta-8 gummies to help with issues related to cancer treatment. Colton, who sat alongside her as she spoke, was diagnosed with a stage 4 brain tumor and was treated with chemotherapy and a stem cell transplant. The treatments cause great discomfort to his gut, she said.
White balked at the drugs Colton’s doctors suggested, saying she preferred to find alternatives. Some of Colton’s doctors at Arkansas Children’s Hospital were not supportive of her interest in cannabis alternatives, she said, but others were, particularly those in the palliative care unit. The Delta-8 products have been helpful in soothing Colton’s discomfort, she said.
White said she pursued Delta-8 because she was familiar with it and because she feared medical marijuana would be too strong for her small child.
Asked what he thought of White’s comments about giving her son Delta-8 during treatment, Dees said it was important for Arkansans to follow the advice of doctors.
Gazaway was more direct.
“I was a little shocked that she admitted publicly that she gave a substance that has psychoactive properties that can be bought at a convenience store to her child who has cancer,” he said. “I thought that was not something maybe she would have wanted to have admitted publicly. There are lots of drugs that can treat cancer and relieve pain that are authorized by the FDA.”
Colton, who recently signed up for kindergarten, has made great advancements through his medical treatments and asks for Delta-8 gummies when he is uncomfortable, White said.
Despite the changes to the law, White said she would continue to find Delta-8 products in other states or over the internet to help with Colton’s discomfort.
“When you have a sick kid, you’ll do whatever it takes,” she said. “It makes me really distraught that I would have to try to find him a new product when this works so well. That’s frustrating for me after everything we’ve been through.”