The Vermont Agency of Agriculture, Farms, and Markets (AAFM), which oversees Vermont’s hemp program, sent an email to all registered hemp producers on Friday morning clarifying that per state definitions and regulations, Delta-8 THC products are NOT hemp products and are illegal to manufacture, and warned of possible criminal sanctions for possessing or distributing Delta-8 THC.
“The Vermont Hemp Program clarified for registrants that it is not legal to manufacture delta-8-THC, because the Vermont Hemp Rules expressly prohibit the use of synthetic cannabinoids in hemp products and/or hemp-infused products. Vermont Hemp Program registrants that manufacture and/or label products containing delta-8-THC are violating State law and risk enforcement by the Vermont Agency of Agriculture, Food and Markets. In addition, delta-8-THC manufactured from hemp may be a controlled substance under federal and/or State law. As a result, anyone who uses, possesses, or distributes delta-8-THC may face federal and/or State criminal sanctions.”
The announcement comes without an apparent specific catalyst, except for increased media interest and scrutiny, as well as compliance questions from within Vermont’s community of CBD producers and retailers making and selling Delta-8 THC products.
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The Vermont AAFM website further clarifies the state’s position on Delta-8 THC, which it acknowledges occurs naturally in cannabis plants in trace amounts, but Delta-8 THC is primarily synthesized and produced through ‘isomerization’ process of converting CBD isolate into THC.
Is the Manufacture of Delta-8-THC or its Use in Hemp Products Permitted under the Vermont Hemp Program?
The short answer is “No”.
Delta-8-THC is a psychoactive compound (similar to delta-9-THC) that occurs naturally in only very small amounts in hemp. The natural concentration of delta-8-THC is so low that it is unlikely to have any effects on the consumer. However, delta-8-THC can be synthetically made from hemp. As a primary example, cannabidiol (CBD) can be isolated and manufactured or synthesized into delta-8-THC. Some producers use this chemical process to convert CBD into delta-8-THC and delta-8-THC products. Manufacturing delta-8-THC from CBD has become a way to create a psychoactive substance under the guise of being derived from legally produced hemp, which by definition does not have high concentrations of psychoactive cannabinoids.
The Vermont Hemp Rules were adopted in May 2020 and ban the “use of synthetic cannabinoids in the production of any hemp product or hemp-infused product.” Vermont Hemp Rules § 6.3. So, while naturally occurring delta-8-THC is not barred from hemp or hemp products, Vermont producers cannot manufacture the delta-8-THC cannabinoid from hemp.
Because the Vermont Hemp Rules expressly prohibit the use of synthetic cannabinoids in hemp products and/or hemp-infused product, Vermont Hemp Program registrants that manufacture and/or label products containing delta-8-THC are violating State law and risk enforcement by the Vermont Agency of Agriculture, Food and Markets. In addition, delta-8-THC manufactured from hemp may be a controlled substance under federal and/or State law. As a result, anyone who uses, possesses, or distributes delta-8-THC may face federal and/or State criminal sanctions.
While delta-8-THC cannot be manufactured from hemp, the Vermont Hemp Rules allow producers to create distillates and isolates of hemp’s naturally occurring cannabinoids to create hemp products. In this process, please note that primary botanical extraction is only permitted by solvent-free mechanical, CO2, ethanol, or lipid methods unless the Secretary approves an alternative extraction method. See Vermont Hemp Rules § 6.2. When using solvent based extraction methods, the product must be in compliance with Vermont Hemp Rules Section 8, and analytical contaminant results must demonstrate that the final product does not exceed Cannabis Quality Control Program action limits.
The determination will primarily impact retail operators in Vermont, especially those selling CBD products, many of whom had enjoyed a bounce-back in revenues largely due to Delta-8 THC.
In terms of cannabis regulations, Vermont is one of the most advanced states, especially in regards to the hemp program, which started in Vermont in 2014 and peaked in 2018 with over 1000 registrants.
That familiarity with hemp cultivation and cannabinoid processing makes the AAFM determination national news and potentially a national precedent for reclassification of Delta-8 THC in this fall’s hemp policy clarification.