Is Hemp Cannabis? A recent investigation attempts to clarify the confusion

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Last week, the Washington State Liquor and Cannabis Board (LCB) settled and closed a nearly yearlong investigation into a cannabis producer that extracted THC from hemp.

The investigation is the latest example of the struggle for regulators to determine what is cannabis and what isn't, and by extension what is legal and what's not.

Unicorn Brands of Raymond, Washington, violated rules governing license, extraction and THC tracing, according to notices issued by the LCB in October 2021. Another charge alleged criminality, but last week the LCB dropped the criminal conduct charge, and Unicorn Brands admitted to the remaining three charges.

According to the settlement, Unicorn "shall not use its license to produce or manufacture delta-8 THC, delta-9 THC, or any similar synthetically-produced THC from any hemp-based sources in the State of Washington unless explicitly authorized by a subsequent change in state law that allows the licensee to do so."

Delta-9 is the compound in cannabis commonly referred to as THC. Delta-8 is chemically similar to delta-9, the only difference being the location of a double bond between two of the carbon atoms on their molecular structure.

Delta-8 has seen its profile rise dramatically in recent years. When hemp was legalized federally in 2018, it was defined as cannabis containing under 0.3 percent delta-9 THC by weight. There was no mention of delta-8, which does not occur naturally at the level of delta-9, though it can be synthesized from compounds occurring in legal hemp such as CBD.

As a result, delta-8 products began to appear on the market across the country. In the wake of that explosion, the LCB issued a policy statement in July 2021 clarifying that synthetically derived versions of THC that came from hemp, including delta-8, were illegal in Washington. However, earlier this year, the U.S. 9th Circuit Court of Appeals ruled that delta-8 products were legal due to the compound being not specifically mentioned in the hemp legalization.

That ruling allowed delta-8 products to stay on the market — just not in Washington. The court's opinion doesn't change state laws, and delta-8 remains illegal in Washington's regulated market, which means licensed producers and retailers are still prohibited from producing or selling it.

Confused? You're not alone, as this settlement and the winding path that led to it make clear. 

Region: North America