Georgia lawmakers aim to take a bite out of retail sales of Delta-8 THC products statewide

This story was updated at 2:30 p.m. Wednesday, Feb. 1, 2023.  

State lawmakers could soon consider a bill that experts say could prohibit the sale of Delta-8 THC, now readily available at Georgia health food stores and other retailers.

Delta-8 is a compound found in small amounts in some types of hemp plant. It is similar to the Delta-9 compound, which produces the high marijuana users experience. In 2018, Congress passed an agriculture bill that, among other changes, made it legal to grow hemp with concentrations of Delta-9 THC below 0.3%.

But the bill did not specify any other form of THC, including Delta-8, which opened a loophole for businesses to sell products containing Delta-8 even in states that do not allow medical or recreational cannabis use. Today, products can be found in head shops and gas stations as dried leaves, vape cartridges or cooked into food items.

Some people use Delta-8 recreationally, others say it helps them sleep or deal with mental issues like anxiety. Forbes reported this month that Delta-8 THC sales topped $2 billion the past two years as an alternative to traditional marijuana. The Food and Drug Administration warns that Delta-8 products are not evaluated for safety or effectiveness.

East Cobb Republican Sen. Kay Kirkpatrick has filed a bill that could close that loophole in Georgia. The bulk of the bill has to do with measures preventing the sale of hemp products to minors, but it also removes the reference to Delta-9 in state code, which would treat all THC-containing products the same.

“The intention of that is to broaden it to cover any product that has that THC concentration,” Kirkpatrick said. “So that would be Delta-8, Delta-10, Delta-omega, Delta-whatever it is next year, so that all of those will come under the same testing and labeling requirements as Delta-9.”

Separately, the Supreme Court of Georgia heard arguments this month from attorneys in the case of Gwinnett County District Attorney Patsy Austin-Gatson’s attempt to crack down on stores selling the products.

“The problem is that it’s a product,” said Gregg Raduka, executive director of Georgians for Responsible Drug Policy. “Man has a lot to do with the creation of Delta-8 THC, and of CBD (products). And nobody really knows if what’s in the bottle is on the label. There’s very little consumer protection because it’s not FDA regulated.”

Users have reported adverse effects, including hallucinations, vomiting, tremors, anxiety, dizziness, confusion and loss of consciousness, Raduka said. He said he favors a bill that would prevent minors from getting their hands on the substances.

The Georgia Poison Center reports 191 calls related to synthetic THC since 2018, with 14 last year. Of those, 53 were in response to people 17 and younger and 130 were for adults.

The center reported 2,251 calls coded as THC during the same time, with 801 last year. Of those, 1,238 were related to minors and 932 were related to adults.

The center notes that their numbers only reflect what was reported to them, and it is not mandatory to report all poisonings.

Kirkpatrick said she believes her bill may not end recreational use in Georgia.

“Well, they might still be able to, it’s all about the dosage,” she said. “So you eat enough edibles, you’re still gonna be able to, but at least you would know what’s in it. And I don’t think we want our kids under 18 – I put 18 in the bill, but some people want it to be 21 – I don’t think we want our teenagers walking into these stores and buying gummies and getting high without even knowing what’s in the product.”

Valerie Valdepena, executive director of Peachtree NORML (National Organization for the Reform of Marijuana Laws), begged to differ. Products with less than 0.3% THC will not get people high, she said, and she fears the bill’s effect on the state’s hemp industry.

It’s difficult to grow hemp plants with less than 0.3% THC because the amount a plant produces can change depending on growing conditions, and adding new requirements could make it even harder.

“Our farmers are really having a hard time meeting the legal definition, it’s just a lot of back work,” she said. “So yeah, in theory, this would eliminate pretty much most of the products out there, and would just impact some of our farmers that they wouldn’t even want to grow, they would go to nearby states. So they’re basically pushing all the legal business to nearby states, more friendly states and, and allowing the black market to take over.”

Not only is cannabis available on the black market, but there are also guides online to creating THC out of legal CBD products, Valdepena said.

“People can do this in their own home, so it’s not like you’re going to prevent it, and all you’re doing is creating an extra step,” she said. “And you’re basically eliminating the business of people that would actually go out there and do things legally and safely.”

Georgia Sheriffs’ Association Executive Director Terry Norris said his association had not taken an official stance on the bill, but he guesses the state’s sheriffs will like it.

“There’ve been a lot of sheriffs that have talked to me over the past year or two about the stores selling stuff, and you’ve seen CBD stores jump up all over the place,” he said. “It is a very confusing proposition for the average street cop or even some of the investigators to know what’s legal and what’s not, so I think there’s a lot of clarity coming forth in this bill.”

Two Democrats signed on to the bill, Minority Leader Gloria Butler and Sen. Michael “Doc” Rhett of Marietta. Stone Mountain Democratic Sen. Kim Jackson said she supports the parts of the bill aimed at preventing minors getting their hands on THC, but strongly opposes a full ban.

“I very strongly do believe in what Kay is trying to do around protecting minors from a product that they may not fully understand, and I think that’s valuable and important that we do that,” she said. “But for us to do that and therefore, create a full ban for adults being able to access it as well, that’s where I have a problem, and I hope that we can find a middle way that we can provide the protections that young people need while also allowing these products to stay on the market in our state.”

In 2015, Georgia lawmakers approved a low-THC form of oil for more than 20,000 patients suffering from a list of serious ailments, but today, there is still no pathway for those Georgians to get the medicine. Passing a law banning Delta-8 before helping those patients would not be a good look for the state, Jackson said.

“We know that there are people in our state who are suffering, and that low-THC oil can help ease their suffering,” she said. “We need to do that, and we need to do that with urgency. Prosecuting on Delta-8 should not be a priority for this body.”

To become law, the bill would need to pass through a committee, where it could be amended and changed, then receive majority votes in both the Senate and House and receive Gov. Brian Kemp’s signature. Jackson said she’s hoping the bill will stall out before meeting those milestones.

“Our governor said that he was not interested in fighting any culture wars this year, and from where I stand, the banning of Delta-8 or any other delta product is a culture war that he would be engaging in, and so my hope would be that the leadership would say, ‘Let’s not do this right now.’”