CBD, Delta-8, and Delta-10 in Food/Beverage Products

I’ve been getting a ton of questions on using CBD, delta-8, and delta-10 in food and beverage products, especially with the recent Georgia Court of Appeals ruling finding that delta-8 and delta-10 are not controlled substances: See Elements Distribution, LLC vs. State of Georgia. 

Here’s the deal:

First, this was a case about criminal liability – about whether there was probable cause for a search warrant for a search conducted by Gwinnett County where it seized a large number of delta-8 and delta-10 products from Elements Distribution – including edible and non-edible products.  

The court held that delta-8 and delta-10 THC are not controlled substances per GA criminal code and, therefore, are not able to support criminal liability for possession of such substances (so there wasn’t probably cause for the search warrant). Why did the court find that delta-8 and delta-10 are not controlled substances? 

With respect to non-edible products, the county conceded that “non-food products containing less than .3% delta-9-THC, regardless of whether they contain delta-8-THC, delta-10-THC, or another cannabinoid,” were not controlled substances. So, the issue over non-edibles became a nonissue. 

For edible products, however, the lower court had found that the edible products were controlled substances, and thus illegal, because they did not fall within an exclusion for “hemp products” within Schedule 1 of the Georgia Controlled Substances Act. On appeal, the state argued that even though delta-8-THC and delta-10-THC are not themselves controlled substances, edible products containing them are controlled substances unless those products meet the definition of “hemp products” under the Georgia Hemp Farming Act. The Act defines “hemp products” to exclude “food products infused with THC unless approved by the United States Food and Drug Administration.”   

As none of these edibles were approved by the FDA, the state’s position was that these edibles don’t meet the definition of “hemp products.” The court, however, found that the “hemp products” exclusion is not the only way a product containing THC can fall outside the definition of a controlled substance. The Georgia Controlled Substances Act excludes products derived from hemp if the products have less than .3% concentration of delta-9 THC. The edibles seized by Gwinnett County were derived from hemp and had less than .3% concentration of delta-9 THC, so the court held that these products were not controlled substances under the Controlled Substances Act. 

This is important because the question of whether delta-8 and delta-10 THC are allowed in food products under other non-criminal statutes was not addressed by this decision.

Well, what do the feds say about it? There is naturally derived delta-8 and delta-10 THC, and then there is synthetically derived delta-8 and delta-10 THC-O. The synthetic delta-8 and delta-10 THC-O are deemed controlled substances by the DEA. However, delta-8 and delta-10 THC (naturally occurring in hemp) are not controlled substances per the DEA and are generally legal at the federal level, so long as it doesn't run afoul of FDA regulations. 

The FDA prohibits the addition of CBD, delta-8, and/or delta-10 to food or beverage products. Per the FDA and the GA Dept. of AG, the only ingredients that can be added to food and beverage products are Generally Recognized As Safe (GRAS) ingredients. CBD, delta-8 THC, and delta-10 THC are not GRAS. The only hemp-related GRAS ingredients are hemp seed extract, hemp seed protein powder, and hulled hemp seed - none of which can be advertised as CBD or THC. 

As such, the rule right now is no CBD, delta-8, or delta-10 in food or beverage products.

On a different note, arguably one could offer delta-8 and/or delta-10 THC products so long as not in the form of a food or beverage product and so long as the product does not advertise any health-related claims. It might be wise, however, to play the waiting game for a bit to see how local jurisdictions and other government agencies react to the ruling and to see if the ruling is appealed to the Georgia Supreme Court (which is likely in my opinion).