2018 Farm Act hemp exclusion
2018 Farm Act hemp exclusion

Under 0.3% THC by Net Weight - The Greatest Loophole in Drug Law History?

What was written as standard line opened up a billion dollar hemp delta industry

Posted by:
Thom Baccus on Monday Aug 1, 2022

2018 farm act hemp thc law


Under 0.3% THC by Net Weight – The Greatest Drug Law Loophole in History


There was not supposed to be a 3rd article to the to the two-part series on "Delta-8 THC from hemp", and how there is a Civil War going on in the cannabis space between the “hemp guys with Delta-8 and 9 from hemp”, and the “regular marijuana guys with “real-deal Holyfield THC weed”.


But like every sequel, more information has come to light in order to make this groundbreaking 2-part expose on Delta-8 and Delta-9 THC into a full-fledged trilogy.


If you have not read the first two pieces on the evolution of hemp-based cannabinoids that are legal under the 2018 Farm Act, including the Delta-8 THC and even Delta-9 THC, then you need to read them first.

The first piece is entitled, “The Marijuana Industry Is Dead”, liking the development of Delta-8 THC to Prince’s famous quote in 2010 about the internet being dead with the development of the app stores.


The follow up piece, called “D8 vs. D9 – The Cannabis Industries’ Civil War”, was a follow up article explaining the changes, most notably the nano emulsion process that is now being used to shrink down hemp cannabinoids in order to get them into soda and seltzer form.  This “shrinkage” of the THC molecules to 20ng-50ng allows the molecule to pass directly into the blood stream, cutting down on activation time and enhancing the effects by 10x the usual Delta-8 THC.  Hence, getting really high off hemp is now a real thing, and deadly for the marijuana plant industry.


In the first two pieces we covered if the Delta-8 molecule was in fact legal and how the new delivery method was a game changer for the entire hemp cannabis industry.  The second article covered how liquid, because of how dense and heavy it is compared to dry flower or leaves, was a gamechanger as well.  Now, “0.3% or lower of THC to be consider hemp” allows the new weight levels to drastically increase THC amounts, even staying well under the 0.3% required by law.


But wait, isn’t the 0.3% or less of THC by dry flower weight?  A can of seltzer or soda with hemp in it is not dry flower by any stretch.


Remember, to this point, the gamechanger points were that hemp and all its components were legalized under the 2018 Farm Act.  Two, the nano emulsion process, shrinking the molecule to get directly into the blood stream, changed the game for “getting high from hemp”.  Delta-8 went from “kind of, sort of high, I think I feel it”, to “holy moly I am stoned to be-jesus”.  As Delta-8 companies start rolling out Delta-9 THC products made from hemp, how can that be legal?  Delta-9 is the real deal THC, the one that is banned by the Federal government.


Cannabis by definition of Federal Law is anything above 0.3% Delta-9 THC by product weight. THC that is derived from hemp and is testing at .009% in some Delta-9 beverages is 33x under the legal limit. Most of the biggest Delta-8 and Delta-9 brands do this type of math with edibles now all over the country, but liquids like seltzers and sodas can get away with more because it's in a 355 ML drink vs a 4-6 gram gummy. So now you understand the significance of liquid weight and nano emulsion technology.  It made hemp, marijuana basically.


Federal Law permits the sale of hemp products that contain less than 0.3% Delta-9 THC by weight. This rule is applied to all hemp products as there are no sub-categories such as edibles, beverages, vapes, etc. You can go to any head shop in North America outside of the states that have banned Delta-8 or 9 from hemp, and you will see Delta-9 products all over the shelves. But these Delta-9 products form hemp only contain a few milligrams of THC because they are in lesser weight products like gummies.


Regarding the 0.3% by dry weight question, one that anti-hemp protagonists cite, the best reference for this debate in regards to the FDA and DEA stances on this subject in reference to eating a gummy or drinking a liquid is this this article, “Hemp Extracts: The Dry Weight Problem” released in January of 2021 that speaks on this issue in detail. The conclusion at that time was that liquids need to be measured differently than dry extract. You can find the specific formula used on page 4.  Since then, the DEA has set a standard that gives its registered labs a way to deduct by volume.


The last page of the report, which states the FDA needs to adopt a volume-based unit of measurement for liquids, should be noted. This was 18 months ago and while the FDA has not adopted any standards yet, the DEA has set its own standards that all their registered labs must abide by.  Those standards are 0.3% or less of THC.


What does that all mean? It means that as of right now, there is no standard on the books to differentiate 0.3% of THC by weight between dry flower, liquids, or gummies. The DEA standards are beneficial for liquids and says they must be under 0.3% THC to be considered legal.


Delta-8’s legality has withstood federal challenges, and at this point, all Federal panels and judges have ruled that the Delta-8 molecule from hemp is legal. All the ingredients are from the legalized hemp plant, so what can be illegal in this concoction?


This is important for the hemp industry because it sets precedent in the CYA scenario or Cover Your A$$. If you were to be hauled into a Federal court over selling Delta-8 or even Delta-9 from hemp, the Federal judge would have to “overrule” the other 3 cases and judges decisions that Delta-8 and Delta-9 that is under 0.3% is illegal.  Not impossible, but not likely either.


Much of the legal marijuana industry has their head in the sand on this new industry, or they have their fingers in their ears singing “la la la” and they just hope it goes away.

I was recently on a show about this subject and debated a “true marijuana guy” who called me short sighted and almost foolish to think Delta8 and hemp derived Delta-9 would be important.  It was a fad, a short-term window until the real deal stuff was legal.


I said, “That is exactly what I thought before I did research and got educated on the subject in-depth.  I actually used those exact lines in our first article about what I thought the Delta-8 THC market was all about.”


Some people in the marijuana industry are like the band playing on the Titanic right now, unable to foresee a future where hundreds of millions of people are getting high, or a good night’s sleep, or losing weight, on hemp-infused drinks containing Delta-8 or Delta-9 cannabinoids.


These sodas and seltzers are legal, shipping around the country right now, getting people super high, and being sold at convenience stores, liquor stores, bodegas, and mini-marts.


Who needs dispensaries when you can sell this stuff to millions of retail outlets right now?


Who needs the marijuana plant THC when it is more restricted, more expensive to the consumer, and harder to get?


Remember that every consumer survey of marijuana consumers says 3 things are important to the consumer.  Sorry branding guys, but your fonts and colors don’t mean squat according to consumer data.  All consumers care about is price point, desired result, and how far or hard was it to get the product.  They don’t remember colors, boxes, names, just how much did it cost, did it work well, and how far or long do I have to go to get it.  Why is this important in hemp Delta-8 scorecard vs. marijuana?


Set up a future scorecard between hemp-infused Delta-8 and Delta-9 products. How much does each cost?  Hemp is cheaper and more easily sourced. Winner hemp, one point. Did it work well?  Hemp Delta-8 drinks at 30mg are identical to eating a cannabis 10 to 15mg edible.  The high is so similar, regular cannabis users should try a “taste test”, or “high test” to see if they can tell the difference.  Delta-9 THC from hemp actually is the same Delta-9 molecule you enjoy in regular cannabis, so that actually is identical!  We will call that area a “push” or half a point for hemp and marijuana each, both are almost identical unless you are a true connoisseur of weed.  Accessibility?  Hemp Delta products are sold in liquor stores, quick marts, dispensaries, bodegas and just about anywhere you can buy cigarettes or alcohol. Winner hemp products, they can legally be everywhere, while marijuana is very much still a “dispensary thing only”. 


So even if you aren’t passionate on one side or the other in this debate, you can see that consumer data has hemp-infused products beating regular weed products 2.5 to .5 points.  That is huge, because in the end, what consumers want and will pay for is all that matters.

Want to know why cannabis prices are dropping like a stone?  Why a pound of cannabis in Michigan is now below $122?  The easy answer is that between the illicit and legal market we are seeing market saturation.  While this is definitely true, don’t’ count out “legal hemp-infused products” as another venue pulling dollars away from the marijuana industry.  For every person that orders a case of Delta-8 or Delta-9 infused soda or seltzer, or gummy for that matter, it is one less order of marijuana products or flower.  Since hemp products are shippable by US mail, UPS, Fed Ex, and have withstood the Federal legal test, the consumer is wide open for them.



Could Delta-8 and hemp derived Delta-9 get so big that it could force marijuana legalization?


Wait, what?


Remember, Federal cannabis legalization is all about money, just like everything else.  There are plenty of parties in the marijuana industry that DON”T want Federal legalization, they like the MSO idea and having state “moats” to keep profits higher and less competition in the space.  What if that model of protectionism isn’t profitable anymore, and MSOs and all licensed cannabis growers and retailers push hard for Federal legalization?  If hemp products can take a big enough piece of the pie with the market so less restrictive, will the restricted guys actually want legalization so they can compete with hemp products?  Could hemp products clean the clock of marijuana products to the point to where the MSOs are begging for legalization so they can compete with Delta-8 and 9 hemp products shipping to consumers doorsteps?


What if the hemp industry gets 200 million people super high before the marijuana industry gets Federally legalized and can get to those people? Why switch to the more expensive, Federally illegal one, when this version does just fine and it cheaper?


If you are in the industry and think this is all poppycock and “a quick gimmick” market, I want to leave you with a business changing thought. 


Thanks to the 2018 Farm Bill, some scientists, and a vaguely written Federal law, hemp can now get your really high. 


Think about that when you fall asleep tonight.

Legal hemp can get you really, really high.






D8 VS D9


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