A new kind of cannabis product has put lawmakers, small business owners and those looking for alternatives to medical marijuana in a quandary.
Just as the legislative session was winding down in early April, state lawmakers passed a prohibition on a series of psychoactive compounds that have become a popular item among those looking for a mild high or wanting something less potent than marijuana.
Senate Bill 358, now Act 629, is targeted mostly at products containing delta-8, a psychoactive substance found in cannabis and used in a growing number of hemp-related products.
The law, signed by Gov. Sarah Huckabee Sanders on April 11, is meant to keep products with the substance away from children, proponents said. But owners of hemp shops in Arkansas said the law bans a product that some adults use as a less potent alternative to marijuana.
WHAT IS DELTA-8?
Delta-8 is a psychoactive substance found in cannabis sativa, the species of plant that both marijuana and hemp are varieties of. Legally, hemp must contain 0.3% or less of delta-9 tetrahydrocannabinol, more commonly known as THC, the main psychoactive substance found in marijuana.
In 2018, Congress legalized hemp through the farm bill, clearing the way for an expansion of industrial products derived from the plant including rope, paper and clothing.
Since hemp contains only trace amounts of delta-8, some in the cannabis industry have recently begun to synthesize the compound out of the plant and put it into products such as gummies, vape pens and oils, and have marketed the products to stores that specialize in selling CBD products, a compound found in cannabis that does not create a high. Some use delta-8 for recreational use, while others use it as a milder alternative to medical marijuana.
Arkansas' new law prohibiting delta-8 also outlaws similar substances found in hemp, including delta-9, delta-6a, delta-10a and delta-10, reclassifying them as a Schedule VI drug in Arkansas, the same class of drug as marijuana.
Sen. Tyler Dees, R-Siloam Springs, and Rep. Jimmy Gazaway, R-Paragould, led the effort to ban delta-8 in Arkansas during the legislative session, saying the substance was being marketed to children and being sold at gas stations where clerks did not check IDs.
Dees described delta-8 as a loophole that skirted the state's prohibition against marijuana, something a majority of voters affirmed when they voted down a constitutional amendment to legalize recreational cannabis in November.
"The voters have said we don't want recreational marijuana," Dees said. "These [substances] are essentially recreational marijuana, synthetic recreational marijuana."
Arkansas Drug Director Tom Fisher said some delta-8 products contain heavy metals, which can cause people to vomit or hallucinate, prompting calls to poison control. Since delta-8 products are not regulated by the U.S. Food and Drug Administration, it may be hard for consumers to know which delta-8 products are safe to consume and which are not.
"With the lack of regulation and oversight, [it] puts people at risk," Fisher said.
Fisher said he supports the law prohibiting delta-8, likening it to marijuana, which he considers a gateway drug.
From Jan. 1, 2021, to Feb. 28, 2022, national poison control centers have received 2,362 cases related to the consumption of delta-8 products, according to the FDA. Of those cases, 58% involved adults and 41% involved children younger than 18, according to the FDA.
"The problem with delta-8, delta-9 and delta-10, these are [concentrated] solutions that are made by people with no regulation whatsoever," said Jim Bell, a board member with the Wolfe Street Foundation, an addiction recovery nonprofit.
While the new law will outlaw delta-8 as of Aug. 1, delta-8 products can still be transported through Arkansas, something Dees said he included to keep Arkansas in line with federal law that legalized hemp.
WHY USE DELTA-8?
For many, delta-8 is a less potent alternative to marijuana, creating a milder high than traditional THC found in marijuana products.
Scout Stubbs, the co-owner of five stores specializing in hemp products, said delta-8 was a middle ground between CBD, a compound derived from cannabis that does not create a high, and THC.
"It's going to sting a little bit," Stubbs said of the ban. "I don't worry about me, I worry about my customers. I don't want them to find a black market product."
While medical marijuana is legal in Arkansas, obtaining a card to purchase the drug can be difficult for some, Stubbs said. Additionally, there are only 39 medical marijuana dispensaries scattered around the state, meaning those living far away from one may have to drive long distances to purchase the drug.
Ranaga Farbiarz, co-owner of CBD American Shaman Kava Bar in Fayetteville, said many use delta-8 to treat anxiety, post-traumatic stress disorder and sleep apnea. While medical marijuana can be used to treat the same kinds of ailments, delta-8 is more akin to over-the-counter drugs sold at pharmacies compared with medical marijuana, which Farbiarz said was more like a prescription drug.
"[Delta-8] would be the equivalent to the over-the-counter dose," Farbiarz said. "Medical marijuana would be the equivalent of a [prescription] dose and not everybody needs a prescription dose."
Stubbs and Farbiarz said delta-8 products need regulation, not prohibition, and said they don't sell the drug to anyone younger than 21.
"I do believe the market needs regulations, child-resistant package, age restrictions, licenses that are a little bit [hard] to obtain but not impossible to obtain for small business owners," Stubbs said.
"We sell beer here at the Kava Bar and we have an alcohol [license], and we sell smokable products so we have [a] tobacco license. There is no licensing needed for delta-8 so they don't have to get a certification or training," Farbiarz said. "I think certification and training should be part of the licensing process."
While Arkansas' prohibition against delta-8 is set to take effect Aug. 1, it could be challenged in court. Abtin Mehdizadegan, an attorney with Hall Booth Smith in Little Rock, said during a committee hearing on the bill last month that it will likely be challenged in court.
Anticipating a lawsuit, lawmakers included in the bill a trigger clause that would put in place regulations for delta-8 products if a court were to issue an injunction prohibiting the state from enforcing the law. In that case, delta-8 would remain legal, albeit heavily regulated with retailers being required to obtain a $5,000 license to sell delta-8 products.