Wyoming ban on delta-8, similar hemp products nears finish line

Wyoming could soon ban a popular marijuana-like substance, possibly leaving residents to order it online.

Delta-8 THC, sometimes referred to as “diet weed,” has become a popular product across Wyoming over the last few years, with shops opening in many communities. Still made from the cannabis plant, this substance can be extracted and mixed into gummies, vape cartridges or smokable flowers. 

However, after reports of teens going to the emergency room in Cody, lawmakers discussed banning delta-8 and its derivatives, citing concerns over its safety. 

After months of discussions, Senate File 32 – Hemp-limitations on psychoactive substances is now nearing the finish line to do just that. 

The history

The 2018 Farm Bill, which legalized hemp, also led to the rise of delta-8. The law states that hemp products are legal if their delta-9 THC levels are lower than 0.3% on a “dry weight basis.” (Wyoming used that same language in legalizing hemp here.) 

Because the law specified delta-9, savvy entrepreneurs looked to extract delta-8, delta-10 and other similar THC products that induce highs and relaxation similar to recreational marijuana. 

These substances occur naturally in smaller quantities in the plant and can produce a milder effect, but they can be synthesized into higher concentrations, making for big business. Some estimates put these products’ revenue in the billions of dollars in the U.S.

However, many states that outlaw marijuana have been attempting to ban delta-8, too. Their success has been mixed. The rub is that courts — including the U.S. 9th District Court of Appeals and a federal judge in Arkansas  — have found that delta-8 is federally legal, and states cannot prevent the substance from passing through. 

In essence, opponents of SF 32 say the ban would just affect Wyoming businesses. Loyal users — old and young — could just order the substance online. 

Sam Watt and his wife own Platte Hemp Company — including five stores around the state — and has stated delta-8 is a major part of his business, which overall provides the state more than $500,000 in sales tax revenue a year.

Watt’s businesses would shutter without delta-8, he said, and while he wouldn’t want to sue over a ban, “I am huge on our Constitution.” 

Still, Watt stated he would support banning sales to people under the age of 21 and putting more regulations in place, like third-party testing — something his company already does. 

“We’re all about regulation,” he said. “We’re all about doing the right thing, making sure that the customers are consuming safe products, including our products.”

This is something that other new industries across the country have been asking for, too, but at the federal level. That includes Kratom — another substance that’s gained popularity the last few years. 

The danger

While some courts have found it to be federally legal, the U.S. Food and Drug Administration warns that delta-8 and similar substances haven’t been federally vetted and could be created using harmful chemicals. 

And in January 2022, several teens in Cody went to the emergency room after allegedly taking delta-8. On Wednesday, Roy Eckert with the Wyoming Association of Sheriffs and Chiefs of Police said that’s also happened in Powell.

“The sheriffs and chiefs of police have been involved with this throughout the process,” he said. “We still support this bill. Ultimately, it’s about what’s best for our communities.”

Julie Pyle, manager of a Platte Hemp store in Sheridan, told lawmakers she was aware of kids trying to get delta-8, so would also support increasing the age limit to 21. One time, Pyle said, the store had to deal with an 18-year-old buying and then selling delta-8. 

“We worked with law enforcement to find out he was selling to the minors at school, which we do not stand for,” she said. “We do not want our product in the hands of people who are not adults.”

Many other supporters of delta-8 came to speak Wednesday, largely reiterating points that the substance can help people who have sleeping troubles, anxiety, PTSD or chronic pain and who don’t want to take opioids or other medications.

“Delta-8 is a product in Wyoming that helps many veterans with PTSD and people with cancer that treatment options need to work with their appetite,” ban opponent Chance Coppinger told lawmakers. “And neither in Wyoming have the option for medical marijuana at this point.”

A University of Wyoming survey in 2020 found that Wyomingites overwhelmingly support medical marijuana, but it remains illegal in the state. 

Tierney Piper, who sells delta-8 in Cheyenne, also spoke to committee lawmakers Wednesday, telling them that parents and others need to be vigilant about substances, too. Minors already technically can’t buy anything from head shops. 

“It’s not any different than a parent going and buying alcohol for their 15-year-old kid,” she said. 

People will sometimes drive up from Colorado to get delta-8 from her because it’s milder than medical marijuana and can still help them sleep or alleviate pain, she added. 

Deborah McElhiney, a 58-year-old from Upton, also said that she uses delta-8 for her chronic pain due to a neurological condition and the anxiety that comes with that condition. She likes that it’s a legal product that isn’t an opioid or barbiturate, she said. 

“I’m a law-abiding citizen, so I want to be able to continue to access these products,” she said. 

Lawmaking

Over the interim, lawmakers struggled to find a way to outlaw delta-8 while preserving Wyoming’s hemp and CBD industries. Initial attempts at legislation were scrapped after broad disapproval.

“If for one instan[t] I feel this bill is going to prohibit CBD … I’m not voting for it, and I’m guessing most everybody on the committee is not going to vote for it,” Rep. Barry Crago (R-Buffalo) said at a meeting in November.

Outlawing delta-8 could still affect CBD sales, according to Sam Watt, with hemp shops that rely on delta-8 closing. Beyond that, Alicia Watt — Platte Hemp’s co-owner — was concerned it could also affect certain CBD products because it excludes hemp products including a “synthetic substance.”

“It would take away CBD chews,” she said. “You couldn’t even give CBD to your dogs.”

Technically, synthetically made hemp products are already illegal in Wyoming, but it’s hard to prosecute someone when law enforcement is unable to prove whether it’s natural or synthetically made. 

Delta-8 can be naturally occurring, though in extremely small amounts. While that means most products sold in stores are likely synthesized, the state crime lab can’t tell the difference.

“The issue with delta-8 THC is there is no scientific test to tell where the delta-8 came from,” Sarah Barrett, the lab’s drug chemistry and toxicology supervisor, testified this week. 

This bill would overcome that concern, banning all types of THC over 0.3% per dry weight basis. 

Representatives of the Wyoming Department of Agriculture have also testified that the bill likely wouldn’t affect their process of vetting the four licensed producers/processors and one licensed processor only of hemp.

Rep. Karlee Provenza (D-Laramie) wasn’t sold on the need for the ban, though.

“I don’t think this is any more dangerous than alcohol, yet we can walk down the street and buy some,” she said. “We have said that people can’t make decisions of what to do with their body in the privacy of their own homes by using substances that hurt virtually no one.”

Rep. Ken Chestek (D-Laramie) was also uncertain about a ban, but voted to advance the bill as an effort to potentially amend it in a way that could still ban the substance for people under 21 years old.

“It seems like the problem we’re trying to solve here is to keep these products out of the hands of minors,” he said. 

Still, Rep. Ember Oakley (R-Riverton) was clear that she still supported the bill because marijuana is illegal in Wyoming and there’s still so much that isn’t known about the health effects of delta-8 specifically. Oakley pointed to concerns raised by researchers at UCLA’s Cannabis Research Initiative. 

“Perhaps doctors shouldn’t have a corner on the market, but the reality is, that’s how we do it,” she said. 

The bill has now passed the Senate, the House Judiciary Committee and the first House floor vote.

Only two votes likely remain between the bill and the governor’s desk. 

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