Mirror photo by Patrick Waksmunski / A sign showing the availability of Delta 8 is found in the window of a local shop in Altoona.

Recent criminal charges filed against the owner of a Hollidaysburg CBD shop, followed by the transfer of a local manufacturer’s Delta 8 operations to West Virginia, have highlighted the uncertainty surrounding the legality of Delta 8 products in Pennsylvania.

Delta 8 tetrahydrocannabinol (THC) is made from hemp plants, not marijuana plants and that makes all the difference, said those on both sides of the issue.

The 2018 federal Farm Bill made hemp-derived Delta 8 legal, plain and simple, proponents said. And since there is no concentration limit, manufacturers who have been using chemicals to boost its potency aren’t in the wrong either, they said.

But Delta 8 THC is flat-out illegal under the state’s controlled substances law, according to the Pennsylvania District Attorneys Association. That information was cited by state police after they filed charges in August against Mike Deangelo, owner of Innovative Extracts/Our CDB Store.

Deangelo maintains that the products he sold were legal.

Authorities in Berks County have systematically confiscated Delta 8 products from retailers there, deeming them illegal after testing, based on the state police Bureau of Forensic Services’ interpretation of Pennsylvania’s controlled substances law — and on reports from parents and schools about problematic reactions among Delta 8 users, said Berks County District Attorney John Adams.

“(But) because of the confusion in the law, we didn’t charge anybody,” Adams said, citing a 9th Circuit U.S. Court of Appeals ruling that states Delta 8 is federally legal — a ruling that doesn’t set a precedent for this area, however. Adams said retailers’ belief that they weren’t doing anything wrong also figured into the decision not to file charges.

Adams said, “This confusion needs to be cleared up,” noting it would help if the General Assembly would take up the issue.

Pennsylvania’s version of the Farm Bill is ambiguous on Delta 8, said Allentown attorney Ben Sheppard, who’s studying the issue.

What’s in a name?

Delta 8 and Delta 9 are among more than 100 cannabinoid compounds produced by the cannabis plant, according to an article published in April by a pair of University of South Carolina immunologists.

Both come from a variety of cannabis plants — Delta 9 is the primary psychoactive component that produces the high from marijuana, while Delta 8 is a less potent psychoactive component found in miniscule concentrations in hemp, according to the article.

Psychoactive compounds affect mood, awareness, thoughts, feelings or behavior, with higher concentrations of the compounds producing a “higher high.”

A rule book is needed for anyone growing the plants or manufacturing the products, and there appear to be loopholes.

Any cannabis plant with greater than 0.3% Delta 9 is classified as marijuana, while any with 0.3% Delta 9 concentration or less is classified as hemp, according to federal regulations, the article states.

Cannabidiol or CBD, however, which is not psychoactive, comprises 5% to 15% of the hemp plant, according to the University of South Carolina article.

Because the federal Farm Bill states Delta 8 from hemp is legal and there are no restrictions on the concentration of the compounds in the product, manufacturers are converting CBD to Delta 8, thus boosting the product’s potency.

Converting CBD to Delta 8 involves a chemical manipulation that makes the products “synthetic.”

Opponents said the Farm Bill doesn’t allow for such Delta 8 products and the issue was taken up by the 9th Circuit I.S. Court of Appeals in AK Futures LLC v. Boyd St. Distro LLC, according to an article in jdsupra.com legal news.

The chemical manipulation is irrelevant, the court ruled, because the Farm Bill’s definition of hemp doesn’t refer to manufacturing methods, but rather to the source of the resulting product, and if the source is natural Delta 8 in the hemp, the product is acceptable, the article states.

If the Farm Bill creates an inadvertent loophole, “then it is for Congress to fix its mistake,” the court ruled, according to Wilson Elser.

A gray area

One area of confusion comes from the Pennsylvania Industrial Hemp Research Act, which mirrors the federal Farm Bill limiting the amount of Delta 9 THC in hemp-derived products to 0.3%, just as the federal law does, Sheppard said.

But the Hemp Research Act doesn’t mention Delta 8, he said, so it’s unclear whether the 0.3% limit for Delta 9 should also apply to Delta 8 in Pennsylvania.

One potential interpretation of the Pennsylvania law is that Delta 8 is “encompassed” within its reference to Delta 9, meaning the 0.3% limit would also apply to Delta 8, Sheppard said.

Another interpretation is that because the law is silent on Delta 8, there are no restrictions on that type of THC, Sheppard said.

Delta 8 seems to be part of a gray area in the law, said state Rep. Lou Schmitt, R-Altoona, who’s a lawyer.

If the matter goes to the courts, a judge may end up ruling on it as “an issue of first impression” — meaning that there isn’t binding precedent to cite from a higher court, Schmitt said.

A judge in that situation would likely rely on his own research and on the opinions of lawyers, Schmitt said.

A judge could rule definitively on the matter or even refrain from ruling — while also saying the law ought to be clarified, he said, noting that it’s not uncommon for court rulings to lead to legislative action.

And yet the federal Farm Bill may change before that can happen, because it’s up for renewal at the end of this month, Sheppard said.

No limits, no oversight

Victor Danny Peruna of Tru Healing Concepts, an Altoona hemp dispensary, said there is no limit on the concentration of Delta 8 products based on the Farm Bill’s wording.

Exhale Hemp Products’ website advertises Delta 8 offerings with concentrations many times higher than the 0.3% Delta 9 limit for hemp — with Delta 8 concentrations advertised as 8.4%, 7.16%, 6.12%, 5.8%, 5.76%, 4.9% and 3.99%.

Opponents claim users oftentimes don’t know what they’re getting.

Because Delta 8 products aren’t regulated by the Food and Drug Administration, they’re not safe, according to the FDA.

The agency received more than 100 reports of adverse events in patients who used Delta 8 products between December 2020 and February 2022, according to the agency.

Those included hallucinations, vomiting, tremors, anxiety, dizziness, confusion and loss of consciousness — and 55% of them required emergency intervention or hospital admission, the agency stated.

In addition, national poison control centers dealt with 2,300 “exposure” cases in the 12 months starting on New Year’s 2021, according to the FDA.

Some manufacturers use “potentially unsafe household chemicals” to synthesize Delta 8, and some manufacturing occurs in “uncontrolled or unsanitary settings, which may lead to the presence of unsafe contaminants” in the final product, the FDA states.

‘We didn’t write the law’

One problem with the Pennsylvania DA’s Association’s contention that the state’s controlled substances law makes Delta 8 flat-out illegal is that Delta 8 — in small quantities — is always present in hemp, Sheppard said.

That creates a tension with the Industrial Hemp Act, which decriminalizes the growing and possession of hemp, he said.

Declaring hemp flat-out illegal would be like prohibiting the possession of apple stems, while not making apples illegal, he said.

That would be problematic, because stems are an integral part of apples, he said, just as Delta 8 is integral to hemp.

Blair County First Assistant Public Defender Julia Burke, who is representing Deangelo, said the “rule of lenity” should protect her client from charges based on Delta 8 sales.

That “foundational concept” in law calls for rulings in favor of defendants, when there’s statutory uncertainty, she said.

“It’s not fair to punish someone if it’s not clear there’s a crime,” she said, stating that Delta 8 sales have been conducted openly.

Burke thinks state police are trying to make an example of her client, calling his arrest and charges amount to “arbitrary enforcement.

“It’s not how criminal law is supposed to operate,” she said.

If authorities change their policy and decide to begin enforcement of a law they were not previously enforcing, they ought at least give notice to affected people and businesses, she said.

The lack of a clear prohibition against even high concentrations of Delta 8 when there are specific limits cited for Delta 9 might be an oversight in the law, Burke conceded.

It might even amount to “legal absurdity,” she said.

“But we didn’t write (the law),” she said.

Mirror Staff Writer William Kibler is at 814-949-7038.