Delta-8 - AKA 'diet weed' - could be criminalized in Wyoming

Wyoming has long had an adversarial relationship with smokable or edible intoxicants, and that may continue with delta-8 - colloquially known as "weed light" and "diet weed."

Members of the Legislature's Judiciary Committee will consider a draft bill Tuesday in Casper that would effectively ban that substance and any other with "similar chemical structure and pharmacological activity."

The discussion comes at a time when stores selling the substance are proliferating in Wyoming, national leaders are debating its federal legality and concerns mount about a lack of regulation and possible harm to kids.

Delta-8 is chemically similar to the psychoactive component of marijuana - delta-9-tetrahydrocannabinol (THC) - but can be made from hemp and tends to produce more mild effects because of its structure. However, without much regulation, delta-8 products on the shelf may not always match substances researched in the lab.

There are even versions of delta-9 that have been considered legal if kept below a federal and state threshold of 0.3% per volume.

These substances have eluded Wyoming's pot prohibition thanks to a perceived loophole in the 2018 Farm Bill, which made hemp products federally legal as long as their delta-9 THC levels are lower than 0.3% on a "dry weight basis."

Language from that bill ended up in state laws across the country, including Wyoming's.

Product manufacturers saw that language as an open door for a range of hemp-derived substances, including everything from vape pens and smokeables to gummies.

Delta-8 in Wyoming

For Sam Watt in Casper, delta-8 is a mainstay at the five Platte Hemp Company stores he co-runs with his wife around the state.

"I think we made our first [delta-8] purchase in the summer of 2019," he said. "And then we went heavy into it ... really heavy, pretty much when COVID hit. So that's pretty much what saved our company because we were so new."

It's a fast-growing market, he said, estimating that about a dozen new shops started offering delta-8 products in Casper alone over the last year.

If delta-8 is outlawed, he said his stores won't make it, which would affect Platte Hemp's 39 employees, the contractors he works with, hemp farmers and local coffers.

"It would close the doors," he said. "I do business with electricians, my sign company, my insurance company ... And the most important one I'd say is the state wouldn't be getting any sales tax revenue that I've generated. And we're averaging close to $30,000 a month."

Beyond that, Watt said, delta-8 is a naturally-occuring substance in hemp, which could be an added hurdle for farmers who may have to strip it out.

Finances aside, Watt said there's a hunger for cannabis products in his community, including from those who use it to sleep or treat illnesses. For him, Watt said the substance improves his mental health.

"I have severe depression with PTSD," he said. "I've served in the Air Force, multiple deployments ... When my PTSD kicks in, it's pretty bad. I can go literally into the 30s, maybe possibly 35 hours straight of staying awake."

While he was initially prescribed several drugs including narcotics to treat his symptoms, Watt said, delta-8 is now all he takes.

PTSD is one of the conditions for which states like Colorado prescribe medical marijuana. Early research has shown the delta-9-THC in marijuana can alleviate PTSD symptoms for many patients in the short term, but there are calls for more research to be done, and the U.S. Department of Veterans Affairs does not recommend its use in PTSD treatment because of long-term concerns.

Of his delta-8 clientele, Watt estimates the average customer is between 47 and 61 years old. Only those 18 and older are able to buy the substance in Wyoming smoke shops, he said, and those under 21 are in the extreme minority at his businesses.

Those older users aren't who lawmakers have voiced concerns about, though.

"In my community, we've had several students go to the ER as a result of the loophole in the law and this product being available on the shelves in my community," Rep. Rachel Rodriguez-Williams (R-Cody) said at an April Judiciary Committee meeting in Sheridan, arguing for a swift removal of delta-8 from shops. Rodriguez-Williams is on the committee.

In January, Cody High School officials spoke up about five of their students being sent to the ER after taking delta-8, as reported by the Cody Enterprise. The teens had low vitals, were incoherent and one reportedly couldn't breathe. Some Cody students went on to lobby for a bill that would have barred anyone under 21 from buying cannabidiol products like delta-8, but the legislation died in committee before receiving a vote.

There has been a rise in unintentional ingestions and adverse reactions to delta-8 among both adults and young people, according to the Centers for Disease Control and Prevention. Some voiced concerns about the drug's disorienting effects, which are similar to marijuana. For others, medical treatment was necessary.

The Food and Drug Administration warns consumers that these products haven't been federally vetted and can be created using harmful chemicals.

National poison control centers recorded over 2,000 delta-8 exposure cases during 2021, 41% of which involved patients younger than 18. Most were evaluated by health care professionals and 8% of those were admitted to a critical care unit. One death was recorded after a child ate a suspected delta-8 edible.

Watt welcomes more regulation in Wyoming, including the requirement of better, full-panel testing on all products.

"Yes, that is very expensive," he said. "But ... you're consuming this product into your body. Why would you [want to] be inhaling or eating a product that is extracted the wrong way?"

Watt visits the farms where he buys products, he said, making sure they're using the safest methods of extracting delta-8. Then he sends products to a California company for testing. But none of that is required.

"It does not say anywhere in Wyoming law saying that I have to [third party] test this, you know," he said. "They just said make sure your delta-9 is lower than 0.3%."

Still, Watt said someone came into one of his stores recently, telling his store manager, "this bill will pass, and you guys will not stand in our way."

Is it even legal?

There are a patchwork of laws regarding delta-8 across the U.S.

More than a dozen states have banned products containing delta-8 and its isomers. While it allows recreational marijuana, even Colorado outlaws hemp-derived THC products, which include delta-8.

However, when Wyoming lawmakers asked experts about targeting synthetic delta-8 at a meeting in Sheridan this spring, Sarah Barrett with the state crime lab voiced her concerns: It's impossible to tell synthetic delta-8 apart from naturally-occuring delta-8.

"There's no scientific way to determine the origin of that delta-8 THC," she said.

Arkansas also tried to criminalize delta-8 and its similarly-structured cousins. However, a federal judge recently blocked implementation of the state's law, finding it to be vague and possibly in violation of the U.S. Constitution's commerce clause.

The ruling doesn't stop states from passing more restrictive drug laws, but the federal judge's decision suggests laws must be clear and can't restrict the travel of a substance that's federally legal.

Delta-8's federal legality is a question of its own, though. The 9th U.S. Circuit Court of Appeals ruled last year that the Farm Bill's language did make hemp-derived delta-8 legal.

However, U.S. Drug Enforcement Administration officials have stated the opposite, arguing that synthetic extractions from hemp weren't exempted in the Farm Bill and are illegal. Congressmen and several agencies are eyeing ways to deal with the substances, though clear regulations are anything but certain in the near future.

Wyoming is one of only a dozen states nationally that hasn't approved marijuana for either medical or recreational purposes. In the Mountain West, only Wyoming and Idaho have kept it fully illegal.

As for Tuesday's meeting in Casper, Co-Chairman Sen. Bill Landen (R-Casper) said the Judiciary Committee welcomes public input.

"I just don't know a lot about it," he said about delta-8. "I've got a lot to learn, as do, I think, a lot of legislators and a lot of our constituents. A lot of neighbors and friends. Certainly, it's a popular thing."

Landen said he's heard from many people about the proposed legislation, but looks forward to more in-depth discussions going forward, including on Tuesday.

"We welcome public comment," he said. "Depending on how [many people] you get, sometimes you have to limit some public comment and ask for people to abbreviate whatever statements they might have ... but that's really what these meetings are all about."

WyoFile is an independent nonprofit news organization focused on Wyoming people, places and policy.