Delta-8 Is Legal And The United Nations Is Dead Wrong About Cannabis

This piece was co-written by Robert Hoban and Beau Whitney

The world is full of sensationalized headlines. That has been the case since the dawn of news outlets. These “hooks” have gotten entirely out of hand with the introduction of social media platforms and so-called “fake news” outlets. Sensationalized headlines are one thing—misleading or patently false headlines are quite another.

Recently, there was a headline in a well-known cannabis industry publication which stated that the “DEA Classifies Novel Cannabinoids Delta-8 And -9 THCO As Controlled Substances, Even When Synthesized From Legal Hemp.” This was met with an enormous social media response insisting that the DEA rendered Delta-8 and Delta-9 from hemp as illegal, controlled substances. This is not accurate based on the plain language of federal law. Further, the fairly recent 9th Circuit decision in AK Futures LLC v. Boyd St. Distro, LLC states that Delta-8 products “fit comfortably” within the statutory definition of hemp, concluding that Delta-8 may be “properly understood as a derivative, extract, or cannabinoid originating from the cannabis plant and containing “not more than 0.3 percent’” Delta-9 THC. 35 F.4th 682, 686, 692 (9th Cir. 2022).

I would hope to attribute the inaccuracy of this headline as author laziness or the lack of time to conduct proper background research, but that is not always the case. In the cannabis industry, this problem is exacerbated because salacious headlines are a major way to attract readers and news consumers who are unfamiliar with the cannabis space. This is particularly harmful at a time when consumers are hungry for accurate information and education on cannabis. At a minimum, this headline represents irresponsible journalism.

Another recent headline, stating that legalizing marijuana does not reduce black market activity and increases consumption, also grabbed my attention. Reading this, I knew that there must be more to the story, especially since collective experience would indicate that illicit cannabis production does indeed decrease when marijuana is legalized and regulated. The evidence further seems to indicate that use does not increase when marijuana is commercialized and regulated. With the help of my friend and industry leading economist, Beau Whitney, of Whitney Economics, I decided to dive into this topic a bit more deeply.

Unfortunately, most people stop at the headline and fail to delve below the surface of salacious assertions. This week, the United Nations Committee on Narcotic Drugs meets in Vienna to consider the study, among other topics. This is precisely why it is so alarming to see headlines obscuring facts.

The aforementioned headline is definitely an attention grabber. This article warns that cannabis legalization, “increases consumption among young people, does not reduce the illegal market or crime and, in general, [i]t is harmful to public health.” Taken one at a time, these issues are alarming. But are these assertions accurate? The answer to that question is a little bit murky. But it is certainly not as cut and dry as the headline reads.

First, let’s examine cannabis use rates. A recent federally funded study concluded that marijuana legalization is not associated with increased teen use. The study, which received funding from the National Institute on Drug Abuse (NIDA), showed that, “youth who spent more of their adolescence under legalization were no more or less likely to have used cannabis at age 15 years than adolescents who spent little or no time under legalization.” In fact, the study concludes that, “[t]aken together with previous studies, these findings add weight to the conclusion that adolescent cannabis use is holding steady in the wake of legalization, at least in the years relatively proximate to the policy change.”

In 2021, a State of Colorado study concluded that teen marijuana use dropped dramatically in the state. The Colorado Department of Public Health and Environment’s (CDPHE) Healthy Kids Colorado Survey found that young people were 35 percent less likely to use cannabis in 2021 than in prior years. There is a convincing argument to be made that by restricting access to cannabis via the regulated market, there will be fewer pathways of access for youth—especially as the illicit market becomes marginalized.

As far as an increase in use among adults, a prior study by the National Academy of Sciences suggests, “[t]here is little evidence that decriminalization of marijuana use necessarily leads to a substantial increase in marijuana use.” Further, “[t]he available evidence suggests that removal of the prohibition against possession itself (decriminalization) does not increase cannabis use…This prohibition inflicts harms directly and is costly. Unless it can be shown that the removal of criminal penalties will increase use of other harmful drugs…it is difficult to see what society gains.”

In 2015, I co-authored an article which determined that there were few adverse impacts from the commercialization of cannabis in Colorado. This remains true to this day. Whitney suggests that many of the arguments about increased usage are based on survey data from reports published by the Substance Abuse and Mental Health Services Administration, part of the U.S. Department of Health and Human Services. Each year, it publishes a report that shows the percentage of the population that has consumed cannabis in the past month or year. The process of collecting this data involves a government survey asking individuals if they use consumer drugs. Each year the data is different, so it is dynamic.

As cannabis in the U.S. goes mainstream, particularly as more states legalize, survey participants are likely more comfortable admitting to consumption. This “increases” the percentage of the population using cannabis. Yet, it is doubtful this increase is as substantial as the numbers would illustrate. Ultimately, this is being misinterpreted as increased use, when in fact, the data shows these users have consumed all along, they were simply unwilling to admit it in a survey. Similar findings in the United Nations survey data show this same phenomenon in other countries.

When it comes to illicit cannabis activity, I wonder if the goal of legalization is to eliminate the black market surrounding cannabis, or to simply provide a safe, consistent, regulated outlet for consumers to purchase cannabis and to realize tax revenue therefrom. This will displace or move illicit sales into the regulated marketplace but not eliminate it entirely. This is especially true as most states and countries that have enacted a form of cannabis reform have allowed for some type of home cultivation by individuals. Does this constitute illicit market cannabis? Does it promote it?

The total addressable market for cannabis and the number of cannabis consumers is very consistent (despite what surveys may say). From a forecasting perspective, the market for cannabis is quite predictable and measurable. Given there are a finite number of cannabis consumers in the U.S., there is only so much demand to be divided between the legal and illicit markets. Based on data collected from state cannabis regulators and research firms like Whitney Economics, legal sales of cannabis have increased each year, and, as a result, are supporting demand that would otherwise be supported via illicit channels.

In 2022, the $26.1 billion in U.S. legal sales represented roughly 25% of the total addressable market, an increase from $18.7 billion in 2020. Despite some major headwinds on the demand side, Whitney Economics is forecasting 11.8% growth of legal regulated sales in 2023. The argument that “Legalizing Marijuana Does Not Reduce the Illegal Market and Increases Consumption: UN” is simply not supported by the data. In fact, the data overwhelmingly demonstrates that more consumers are choosing to obtain cannabis through legal, regulated channels. Cannabis use has existed for millennia. It is not new. It is simply migrating into safer, government-sanctioned channels.

Lastly, regarding whether the legalization of cannabis is adverse to public health, numerous countries have enacted cannabis reform measures due to the fact that legal, regulated cannabis actually improves the public health, not vice versa. Uruguay’s policy reform basis is a prescient example of this fact.

In recent days, the Mexican equivalent of the FDA—COFEPRIS—also recklessly stated that cannabis is detrimental to the public health. This is frankly absurd. These COFEPRIS officials should be held accountable for their misinformed and errant public statements. Public health advocates are overwhelmingly supportive of cannabis policy reform.

Moreover, data shows that when consumers have access to cannabis, there is a significant reduction in healthcare costs, opioid and other prescription drug-use, and a decline in opioid related deaths. They key term here is “access.” The National Institute of Health (NIH) has commissioned a series of research projects on this topic and the results are clear and consistent. Cannabis reform, unequivocally, benefits overall society. Generally, when reform measures are proposed, policy makers have public safety, job creation, and increased revenues through taxation as the goal.

One often overlooked aspect of cannabis reform is the reduction in health care expenditures. In fact, a recent study published by the NIH, found these results: “We find significant reductions in the volume of prescriptions within the drug classes that align with the medical indications for pain, depression, anxiety, sleep, psychosis, and seizures. Our results suggest substitution away from prescription drugs and potential cost savings for state Medicaid programs.” Some estimates suggest this annual cost savings to be 10% or more.

Another NIH study found a reduction in opioid-related mortality of 24.8%. The 2014 study has been challenged several times, but subsequent NIH papers have affirmed a reduction in both opioid-related prescriptions, deaths, and even emergency room visits related to opioid overdoses. With lower health care costs and mortality, there is a strong economic and societal case to be made affirming the positive benefits of cannabis reform.

Education is key. While it is true that one cannot fault public officials for what is not known, when public officials make statements that are inapposite to the long available research and science, they are on the wrong track and headed for you. Journalists must also must be held accountable for their headlines. Perhaps, this is the genesis of an effort to bring accurate headlines and information to the mainstream concerning the nascent commercial regulated cannabis industry. At least, let’s hope so.

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