A Primer on Delta 10 THC
Delta 10 THC is an isomer of tetrahydrocannabinol, similar to its chemically tossed cousin, Delta 8 THC. Isomers are formed when a compound has the same chemical formula but a unique structure; this results in a differing effect. Delta 10 and Delta 8 are both naturally occurring cannabinoids, but they are in such low concentrations that they cannot be separated from marijuana plants. Because of this, D8 and D10 are synthesized using other cannabinoids within the plant. While their potency is roughly similar to Delta 8 and Delta 9, D10 production has become highly popular only recently. An example of another form of cannabis that is synthesized and has become popular has been CBN – or cannabinol. It is an oxidation product of THC produced as cannabis ages. Just like Delta 10, CBN is a rare compound, that stimulates the CB1 cannabinoid receptors in the brain . The difference between how these two compounds are created is that while the THC levels lower with age, the levels of CBN seem to increase. Unlike D8, D10 and regular Tetrahydrocannabinol (or Delta 9 THC) creates an altered and euphoric high. It should be noted that the euphoric high is lower than both D8 and Delta 9, but its high is still much stronger than the other natural two – CBN and CBD. Though many have claimed Delta 10 overcomes many medicinal issues, there have been no medical studies currently being conducted to support these claims. In terms of the recreational uses of the compound, users have stated that they have experienced increased focus, energy and creativity. Some have reported that the effects of D10 last longer than D8. Delta 10 is also stated to be a good compound to manage anxiety and social situations where one feels shy.
The Present Legal Position of Delta 10 in Georgia
As of now, the legal framework surrounding Delta 10 THC in the state of Georgia continues to be, in effect, a gray area with some uncertainties. The state has not yet explicitly addressed the legality of Delta 10 in their cannabis legislation, meaning that it technically remains unregulated at a state level. However, Georgia law does include a definition for hemp that, much like federal law, is based on the THC concentration of the substance in question. Georgia contains no specific provisions addressing, regulating, or prohibiting unnatural cannabinoids such as Delta 8 or Delta 10. Therefore, as of the time of our writing, it simply cannot be determined whether such cannabinoids can legally be sold in retail outlets throughout the state. To this day, many outlets continue to sell multiple cannabinoid isomers and compounds, including Delta 8, regularly. There is, however, one important thing to note. In 2021, Governor Brian Kemp implemented the Hemp Farming Act, which allows Georgia to collect up to one quarter of the tax associated with the retail sale of cannabis extract. If this tax appetite is any indication, we can reasonably forecast a regulatory shift towards a more direct involvement in the supply chain for cannabinoids, both as a means to benefit state finances and to embrace issues of public safety.
Factors Dictating the Legal Standing of Delta 10 in Georgia
Several factors influence the legality of Delta 10, including the concentration of THC allowable in products. The 2018 Farm Bill legalized hemp, which means that the federal government does not consider cannabis with less than 0.3% THC to be a controlled substance. The most significant thing to note is that this percentage is measured on a dry weight basis, meaning that it is only the weight of the THC that is counted in the measurement. For example, if you have 100 grams of cannabis ("wet") that contains 0.5 grams of THC ("dry"), then you have 0.5% THC by weight, which is below the 0.3% threshold stated in the 2018 Farm Bill.
Federal government agencies, such as the United States Department of Agriculture (USDA) and the Drug Enforcement Administration (DEA), have made clear that the 0.3% threshold is what determines whether the cannabis is industrial or illicit. In Georgia, the Georgia Department of Agriculture has adopted this test as well as the one promulgated by the Agricultural Marketing Service (AMS) of the USDA. AMS has gone so far as to require that the dry weight basis measurement be taken on an individual lot or batch basis. The AMS test states that a showing of a 0.5% concentration for D9-THC on a dry weight basis is evidence that the plant material is naturally high-THC cannabis, whereas a D9-THC concentration of 0.3% on a dry weight basis is evidence that it is industrial hemp.
From a practical standpoint, this means several things: (1) Since the test can be conducted only once in any single lot, it is impossible to ensure that the 0.3% standard is observed without further testing of the entire lot; and (2) Once the test is given, cannabis is either industrial hemp or high-THC cannabis — there is no third category theoretically based on the D9% weight being between the two standards, although in practice, samples might fall just below the 0.3% cutoff or slightly above the 0.3% cutoff but obviously below the 0.5% cutoff.
Another factor that should be considered regarding the legal status of Delta 10 is how state and local authorities have interpreted both the Farm Bill as well as the impact of the Colorado v. Attorney General Merrke case (As a side note, Georgia does have a delta-10 THC product market, but it appears mostly limited to delta-10 THC cartridges.) Colorado v. Attorney General Merrke did not resolve the overall legality of delta-8 THC. However, courts since Merrke have used the reasoning in that case to conclude that the Farm Bill does not authorize states to regulate delta-8 THC. They cite the Farm Bill’s reference to the regulated substance, delta-9, and the subsequent exclusion of tetrahydrocannabinols in the definition of "hemp" as evidence of Congress’ intent to regulate substances that are within the delta-9 family of substances. Therefore, states have no right to regulate any other tetrahydrocannabinols, including delta-8 THC.
Legal Risks and Penalties Associated with Delta 10
Georgia has set a legal maze for Delta 10 THC, as well as other cannabis extracts. All rights regarding cannabis are constitutionally reserved to the state of Georgia and its political subdivisions. O.C.G.A. § 2-1-1(a).
Under Georgia law, cannabis is defined as:
All parts of the plant Cannabis sativa L., whether growing or not, the seeds thereof, the resin extracted therefrom, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or its resin. This term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seeds of such plant which are incapable of germination. For purposes of this Code section, low THC oil as defined in Part 2 of Article 7 of Chapter 34 of Title 16 shall not be considered to be cannabis. O.C.G.A. § 16-12-190(4).
Cannabis leaves, stems, and seeds are not said to be "cannabis." Only the resin is cannabis. If a product does not contain cannabis resin, then a criminal statute related to cannabis cannot apply.
If "THC extract" is illegal, and if cannabis resin is required to make "THC extract," then an extract that contains no resin, then no cannabis, cannot constitute a THC extract, and cannot be illegal.
The penalty for the possession of cannabis in Georgia depends on the amount in possession and the person’s prior criminal history. Remember, only the resin is the cannabis and is illegal if above the statutory threshold amount. O.C.G.A. § 16-13-2(a).
If the substance is a cannabis resin, there is a threshold amount of less than one ounce (28.35 grams). It is a misdemeanor to possess less than one ounce. O.C.G.A. § 16-13-2(b).
Possession of an amount between one and five pounds (453.6 grams) is a felony punishable by two to three years in prison. O.C.G.A. § 16-13-31(c). Possession of between five and 200 pounds (90.7 kilograms) is a felony punishable by three to five years in prison. O.C.G.A. § 16-13-31(d)(1). Possession of between 200 and 1 , 000 pounds is a felony punishable by five to ten years in prison. O.C.G.A. § 16-13-31(d)(2). Possession of more than 1,000 pounds is a felony punishable by ten to 15 years in prison. O.C.G.A. § 16-13-31(d)(3).
Possession of more than five ounces but less than one pound (28.35 grams) is a felony punishable by one to five years in prison. O.C.G.A. § 16-13-31(g).
The possession of a mixture that is more than 5% of cannabis by weight is punishable by the same penalties as possession of the pure resin. The law also does not distinguish between illegal cannabis and legal cannabis from medical CGMP facilities. O.C.G.A. § 16-13-31(e).
The possession of other forms of cannabis, including marijuana leaves, bongs, and edible items, is illegal. O.C.G.A. § 16-13-31(e).
Sale of 28.35 grams or less of cannabis is a misdemeanor. O.C.G.A. § 16-13-31(a).
Sale of more than 28.35 grams is a felony. Sale of 28.35 grams or less is a misdemeanor. O.C.G.A. § 16-13-31(a).
In addition to the penalties described above, Georgia also has the "Georgia First Offender Act." A first offender may plead guilty but receive pre-sentence leniency by not being adjudicated as convicted and have the record sealed after completing a period of probation. O.C.G.A. § 42-8-60.
However, the Georgia Hemp Farming Act states that hemp and hemp products are not controlled substances. O.C.G.A. § 2-22-4(a). The hemp farming act also includes a definition of hemp, hemp products, the THC threshold amount of 0.3%, organic certification, and a hemp processor license and registration. O.C.G.A. § 2-22-2(9). Even though the hemp farming act does not define "hemp products," the act’s definition of the term "hemp extract" is "hemp extract shall mean any products derived from hemp, including oils and tinctures, that comply with the permissible levels of tetrahydrocannabinol provided by the Federal Food and Drug Administration and the United States Drug Enforcement Administration." O.C.G.A. § 2-22-2(11).
Attempts by politicians and industry professionals to use the hemp farming act to erase the vagueness in Georgia’s cannabis statutes and to authorize the production and sale of cannabis products containing 0.3% THC and below have been unsuccessful.
Comparison with Laws Involving Delta 8 and Delta 9 THC
Due to the repeal of the Federal Hemp Farming Act of 2018, both Delta 8 and Delta 10 are legal in Georgia. Delta 9 is illegal in Georgia. And while both are legal in Georgia, it is important to understand that there is a gray legal area where the law isn’t explicitly clear thus making the legality of the drug in Georgia not completely certain. One significant difference between the legality of Delta 10 and Delta 8 and Delta 9 is that as of now, Delta 10 is not banned under the State Bill DRAFT HB135. This bill will ban the use of Delta 8 in the state of Georgia if passed.
Likely Trend for Delta 10 THC Legislation
Legal experts have been closely monitoring the rapidly evolving landscape for Delta 10, and some are predicting potential changes in legislation at both the state and federal levels. President Biden’s administration has indicated a desire for greater control over any substances that combine intoxicating and non-intoxicating properties. At the same time, state verbiage on this has also started to shift.
Legal experts cite how Utah seems to be into banning all intoxicating substances, and how other states like California and Colorado have moved toward clearer definitions . In Georgia, the language regarding psychoactive properties could present opportunities for future legislation. Whether the Georgia Assembly addresses Delta 10 in the next session remains to be seen. Recent developments indicate a more focused effort to roll back access to intoxicants in the coming year. Opinion polls in Georgia have recently found that a majority of people do not support releasing more intoxicants into the market.