Delta 8: Pirating and Regulation–Buyer Beware

The fate of Delta 8, which gained in popularity because it seemed to be legal in the context of the Agricultural Improvement Act of 2018, is in question, as the Drug Enforcement Agency’s (DEA) 2021 guide labels it as a Schedule I Narcotic, along with Delta 9 THC, the psychoactive drug found in most traditional marijuana products. However, its legal status is still questionable, because reports  “that the proposed rule to categorize delta-8 as a Schedule 1 substance is not yet final,” leaving it in limbo. 

This state of limbo is leading to more problems with the pirating of Delta 8 products, which puts consumers at risk. In response, states have passed anti-Delta 8 legislation that ban the substance. As NBC reports “14 states — Alaska, Arizona, Arkansas, Colorado, Delaware, Idaho, Iowa, Kentucky, Mississippi, Montana, New York, Rhode Island, Vermont and Utah — have blocked the sale of delta-8, citing lack of research into the compound’s psychoactive effects.” 

delta 8

Source: seattleweekly.comPerhaps the biggest problem with a lack of regulation is the proliferation of Delta 8 pirated products that have dubious origins and content. Moreover, many Delta 8 producers package their products with CBD, causing confusion for some consumers. This has become somewhat of a health crisis, as there has been an uptick in the calls to poison control centers. 

Dr. Scharman, the Director of the West Virginia Poison Center and Professor of Clinical Pharmacy at West Virginia University in Charleston warns, “Delta-8-THC is not the same thing as CBD. Taking more than one dose may cause harm. Even one dose may cause harm if the product does not actually contain the labeled ingredients. These products are not regulated so there is no assurance that the label is correct.”

In fact, according to Julie Helmer, the chief of operations at Freshbros, there is a significant risk of consumers vaping Delta 8 products contaminated with bleach, stating:

“The color variations relate to the pH level and different acid activated media used as bleaching agents used to remove the color from the distillate. This causes the pH level to be acidic, which makes the product unstable. Over time, the distillate will turn pink and even purple.  The lack of color in Delta-8 distillate is popular and is desired in the industry. However, if you are going to smoke Delta-8 distillate in a vape cart, keep in mind there is likely some of the bleaching acid still present, which I, personally wouldn’t want to inhale. Who wants to smoke bleach?”

Of course, it bears mentioning that Freshbros is a major distributor of Delta 8 as well as other Delta cannabis products, something that has not escaped the attention of Sarah Friedman of, who writes “. . .every article I found written on the topic is relevant to Helmer’s statement’s only, and most of these articles go on to give Freshbros’ advice for cleaner products, the kind of move used to get ahead in a market by putting out the idea that only this company would have or could have done it properly.”

Friedman stops short of saying there is not a problem of contamination, adding “. . .new products that don’t go through regulation can be dicey, and it is important to keep an eye on manufacturing practices to ensure corners aren’t being cut.” 

Still, pirating is an issue because some rogue companies do produce subquality products. As points out,  “There’s a surprising number of low-grade, scammy, or negligent companies in the delta 8 THC space to watch out for.”

The website recommends that consumers protect themselves by looking for third-party testing, positive reviews, and details about manufacturing methods. 

But despite bans by individual states, there is no indication that Delta 8 sales have slowed. As Larry Shor, who owns Cleveland Botanical Destination, a CBD retail franchise in Ohio, stated recently, “It’s unlikely that companies are going to stop making products like delta-8 THC, despite state bans. They’re not going to die off. Their pipeline already exists.”

This sentiment is echoed by Boris Jordan, executive chairman of Curaleaf Holdings, one of the industry’s biggest companies, who, according to Bloomberg,  “compared the situation to the vape crisis from a couple years ago, when black-market products caused lung illnesses, souring regulators on even approved products.”

It gets even more complicated when rogue companies steal the label of an established reputable manufacturer. Consumers may not realize these are pirated products, putting their health at risk.

As reports: “Brand theft is nothing new in the industry. Cookies, the highly regarded California-based cannabis brand, is especially popular among logo thieves, who wrap cut-rate, untested, and potentially toxic products in counterfeit ‘Cookies’ packaging and sell them on the illicit market. Now, with the sudden popularity of delta-8 THC products, the logo thieves have invaded that space, too.” 

Meanwhile, as the DEA wrangles with the semantics of its ruling about Delta 8, another agency has taken the lead and named it “verbotin,” which has ironically, made it harder to separate the proverbial wheat from the chaff. As reported by, the U.S. Patent and Trademark Office (USPTO) has stated via an email that “Delta-8 THC products are considered Schedule I drugs, so to that extent, what is in the TMEP [ Trademark Manual of Examining Procedure] applies.” 

The problem with that pronouncement by the USPTO is that because it makes Delta 8 federally illegal, companies that are seeking protection against trademark violations by rogue manufacturers have no recourse because the illegal status of Delta 8 forbids the USPTO from processing any claims.

Of course, there is the unspoken elephant in the room. By keeping Delta 9 as a Schedule I drug, the federal government creates the conditions for the same fate as Delta 8, making a uniform approach to regulation impossible. 

This means “buyer beware” for the consumer. In addition to following the recommendations of, buy only from reputable dealers that specialize in Delta 8. In general, that means being cautious about purchases from vape shops that sell a variety of products. 

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