‘It meets the legal definition of a drug’: Minnesota regulators seek to rein in delta-8 THC

It’s a product that’s easily found in CBD stores across Minnesota and around the country, but whether it’s legal depends on whom you ask.

A substance called delta-8 THC is being sold in a form that looks similar to a marijuana bud and can come packaged as oils and edible gummies, too.

Because delta-8 contains THC, the psychoactive chemical in marijuana, the Minnesota Board of Pharmacy considers it to be an intoxicating product. And now that it’s growing in popularity, the Board of Pharmacy and two other state agencies want lawmakers to step in and adopt tighter regulations.

Jennifer Schmitz sells Delta 8 products at two permanent stores and several kiosks at Twin Cities malls. She describes delta-8 as having a "milder psychoactive effect" than cannabis and says her customers use it for health reasons.

"A range of different things. We see anxiety, depression, pain, nausea, maybe they want to stimulate their appetite," she said.

Minnesota fully legalized the farming and marketing of hemp products last May, and the chemical compound delta-8 is made from extracts using the hemp plant. Those extracts are then transformed into oils and gummy edibles. As long as the products’ THC levels remain below 0.3%, as required by Minnesota law, the CBD industry says they’re legal.

But Board of Pharmacy Director Cody Wiberg told 5 EYEWITNESS NEWS once a manufacturer extracts delta-8 from the hemp plant, it becomes an adulterated form of the hemp product — which makes it illegal, in his opinion.

"It meets the legal definition of a drug," Wiberg said. "And, in Minnesota, drugs are only legal to sell if they are approved by the FDA, if the labeling is approved by the FDA and if the manufacturer is registered with the FDA and licensed by the Board of Pharmacy."

Wiberg says delta-8 is an intoxicating product, another reason he considers it illegal under Minnesota cannabis production laws.

"The laws that we enforce, again, were designed to protect the public from someone who might be making a drug product that could harm someone," he said. "So, it’s a consumer protection law."

Wiberg said he is writing a bill to clarify state laws on hemp byproducts in an effort to better regulate them and protect consumers.

The Minnnesota Department of Agriculture is working with the Board of Pharmacy on that legislation, specifically on edibles.

"The delta-8 gummies are illegal in Minnesota because any form of THC cannot be in food," the MDA said in a statement.

Debate on delta-8 is expected to come up at the state Capitol once the 2022 legislative session begins at the end of the month.

While the Board of Pharmacy says its goal is regulation to better protect consumers from potentially harmful products, other states have taken a different approach: 18 states have outlawed delta-8 products completely.