Those who opened doors for delta-8 in Wisconsin say they had 'no idea'

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Marijuana alternatives like delta-8 flooded Wisconsin and other states after Congress passed a bill to help farmers. But did lawmakers and legal experts know the implications of the bill?

Interviews by the Journal Sentinel suggest that no, the people who helped legalize them had no idea delta-8 and similar products were scientifically possible.

The products are created with hemp, a variety of the cannabis plant that can be processed to yield a potent extract that delivers a similar high as traditional marijuana.

“None of this was part of the plan,” said Jonathan Miller, general counsel to the U.S. Hemp Roundtable, who helped craft the federal law that legalized hemp.

Now, he said, "It's impossible to put the toothpaste back into the tube."

Today, delta-8 and other hemp-derived intoxicants make up a $28 billion industry with little to no government oversight.

The industry was born after the 2018 Farm Bill legalized the sale of hemp and products extracted from it. Soon, manufacturers figured out how to derive highly intoxicating chemicals from hemp. The subsequent blizzard of products include not just delta-8, but newer and more powerful compounds with names like HHC and THCA .

Miller worked with U.S. Sen. Mitch McConnell of Kentucky and other hemp supporters on the 2018 Farm Bill. When asked if he knew that hemp could create intoxicating products, he said, “I did not. And I know that the members of Congress that we were working with did not.”

Miller said that, at the time, lawmakers distinguished between hemp and marijuana by the level of intoxication. Hemp should not be intoxicating at all, he said. The 2018 Farm Bill specifically set a threshold that hemp cannot have more than 0.3% THC, the psychoactive chemical in marijuana that makes users high.

But there is no verification that manufacturers' claims are accurate. And some have invented new products that test at the allowable federal limit, but convert to high-potency THC when burned.

U.S. Rep. Glenn Grothman of Wisconsin was an original pioneer of legal hemp and a supporter of the Farm Bill.

“When we talked about hemp at that time, we talked about hemp that would have very low amounts of THC,” Grothman said.

When asked if he knew that hemp-derived products could become intoxicating, Grothman said: "No, no, no, no."

Grothman said the legislation was meant to encourage industrial hemp production, in which hemp fiber, grain and seed are used to produce renewable resources.

Courtney Moran, an attorney and strategist for two Oregon-based hemp lobbying groups, worked with Sen. Ron Wyden of Oregon to draft the hemp-related portion of the 2018 Farm Bill.

In 2019, Wyden said the country "would not have hemp legalization without Courtney."

Moran, who is from Germantown and graduated from Marquette University, told the Journal Sentinel she did not learn about delta-8 until 2020, two years after the Farm Bill legalized it.

"Could we have foreseen these intoxicating products?" Moran asked. "I didn't. I did not know about these... and how they could be manufactured in a lab."

When the bill removed hemp’s designation as a controlled substance, it removed the Drug Enforcement Administration's authority to regulate the products.

Meanwhile, the Food and Drug Administration says it has limited power to regulate the products.

In a statement to the Journal Sentinel, the FDA said it “will remain diligent in monitoring the marketplace, identifying products that pose risks, and acting, within our authorities.”

That includes warning consumers about the dangers of delta-8 products and "issuing warning letters to companies illegally selling CBD and delta-8 THC products," the agency said.

Lawmakers are now scrambling to regulate the industry. An amendment to the latest House draft of the Farm Bill threatens to ban all intoxicating products derived from hemp and "all products with a quantifiable amount of THC."

Miller calls the proposal a “disaster for the industry" and said it places unnecessary restrictions on farmers, who would then be responsible for ensuring sometimes unnaturally low levels of THC in hemp.

Instead, Miller is calling on the FDA to regulate the goods. Last year, he even testified before Congress demanding it.

"We are the rare industry that's coming to Congress to say, 'Please regulate us,'" he said.

Zoe Jaeger is an investigative intern for the Milwaukee Journal Sentinel. Contact her at zjaeger@gannett.com .

John Diedrich of the Journal Sentinel contributed to this story.

This article originally appeared on Milwaukee Journal Sentinel: Those who opened doors for delta-8 in Wisconsin say they had 'no idea'