Once I’d eaten the gummy, I went for a run and things quickly went south. I suddenly felt like my left leg was going to snap in half at the knee like a wishbone. And that wasn’t the only thing making me paranoid. A couple of hours after taking the gummy, a friend came over to borrow a book, and I was convinced it was the most awkward interaction of my life. Although I fell asleep easily enough that night, I woke up with a start at 2 a.m., and found myself scrolling through the hellish bowels of Twitter searching for... something. But what? Mid-scroll, I realized I did not know. If anything, Delta-8 felt like weed heavy.
At first, I chalked this up to my own body chemistry and tolerance — I’m not a regular cannabis user, so I wasn’t surprised Delta-8 (which is still technically THC) hit me hard. Even so, this felt like something more. As I started to write about my experience taking Delta-8, I began to understand why.
As is the case with many products that are marketed with promises of wellness, from vitamin supplements to essential oils, the Delta-8 industry is largely unregulated. Several cannabis experts with whom I spoke for this article said that a good way to ensure you’re actually getting Delta-8 — and not a mystery mix of cannabis and other substances — is to only purchase products that have certificates of analysis (COAs) readily available to view. These certificates are supposed to show that a product has been analyzed in a third-party lab where it’s been confirmed that it not only contains as much Delta-8 as the label claims, but also that it has a legal amount of “traditional” THC (for products being sold nationally, there should be less than 0.3%). Most importantly, COAs confirm there are no toxins such as pesticides, heavy metals, or residual solvents (compounds produced during manufacturing, such as ethanol, methanol, and ethyl acetate) in the product.
I’d already long since digested that fateful watermelon gummy, but in the interest of doing my due diligence, I double-checked its COA on the website of the company it came from, Hempire Direct. The site linked to PDFs of COAs for most of its products, and at first glance, they looked fine. The one for my gummy broke down how much Delta-8 was in the product, and said the gummy had passed lab tests for pesticides and residual solvents. Great! The next step was to contact the testing lab listed on the COA. Simple! Except, when I did that, the lab claimed that Hempire Direct’s COA had been falsified. What?
That was the start of a journey that has, at times, felt trippier than ingesting that watermelon gummy — which, I was starting to fear, may not have been just Delta-8 at all.
Let’s back up for a minute. What even is Delta-8? Its common name is Delta-8-tetrahydrocannabinol, which is nearly identical to that of “regular” THC, also known as Delta-9 (delta-9-tetrahydracannabinol). If you’ve ever heard the beauty adage “eyebrows are sisters, not twins,” that’s also a good way to think of Delta-8 and Delta-9. Both substances (and CBD) can be found in the same plant genus known as Cannabis sativa L, commonly referred to as hemp, says Dasheeda Dawson, a molecular biologist and the “cannabis czar” for the city of Portland, OR. The two types of THC molecules are made up of the same atoms (21 carbon atoms, 30 hydrogen, and two oxygen), but have slightly different configurations. Namely, while Delta-9 has what is known as a double bond on its ninth carbon atom, Delta-8 has one of its double bonds on the eighth — hence the names.
Delta-8 products are often marketed as “natural.” And Dawson says that small amounts of Delta-8 can sometimes form in cannabis “from the degradation of Delta-9 due to heat, time, and light.” But the Delta-8 that’s being sold to consumers as gummies, vape cartridges, and concentrates is produced synthetically through a chemical reaction, usually from CBD, says Gregory Gerdeman, PhD, a pharmacologist and neuroscientist with expertise in cannabis and the endocannabinoid system. That’s what’s flooding the market in gas stations, smoke shops, and online — and that’s what isn’t being tightly regulated.
Delta-8 has been touted as “legal,” but it actually falls into a gray area under the law. While the 2018 Farm Bill made farming and distributing hemp and its extracts legal across the US, it included the condition that the resulting product had a Delta-9 concentration of under 0.3%. By this definition, Delta-8 is technically legal simply because it’s not Delta-9, despite its allegedly intoxicating effects. The Farm Bill also gave the Food and Drug Administration authority over cannabis products and their regulation; but so far, they’ve only approved CBD as a drug ingredient. They’ve not yet regulated the manufacturing and sale of hemp-infused products, thus there are no federal regulations for companies to “comply” with. The FDA has yet to approve any Delta-8 products.
When Refinery29 asked the FDA about their strategy for regulating Delta-8, a spokesperson for the agency replied, “The FDA is actively monitoring the market for product complaints and adverse events.”
But that doesn’t mean the loophole-esque legality of Delta-8 hasn’t been challenged. In August 2020, the Drug Enforcement Administration, in a document that was meant to clarify the line between hemp and cannabis and its compounds, and which is still under review until this coming October, stated that “all synthetically derived tetrahydrocannabinols remain Schedule I controlled substances.” When asked for comment, a spokesperson for the DEA told Refinery29: “As DEA is currently undergoing the rulemaking process regarding the implementation of the Agriculture Improvement Act of 2018 [aka The Farm Bill] — which includes the scope of regulatory controls over marijuana, tetrahydrocannabinols, and other marijuana-related constituents — we would be unable to comment on an any impact in legality of tetrahydrocannabinols, Delta-8 included, until the process is complete.”
At least nine states have specifically prohibited Delta-8, in part because of the lack of research on the substance — although some claim that those bans might also have to do with Delta-8 sales cutting into Delta-9 THC sales in states where the latter is fully legal, costing everyone from the state to purveyors revenue. Rod Kight, a lawyer in the cannabis industry, believes Delta-8’s legality will likely follow the same pattern as that of CBD: “There was an initial burst onto the scene and then you saw states restrict it, and then other states took the opposite tack,” he says. “Right now we’re in the phase where states are banning it, but I think eventually we’ll see a counterbalance where states become open to it.”
And some states are doing their best to regulate Delta-8, rather than ban it entirely. In Florida, for instance, the Department of Agriculture and Consumer Services oversees Delta-8 sales, and will consistently test products to see if they contain what they say they do, says Holly Bell, director of cannabis for the department. If a Delta-8 product contains harmful substances or has too much Delta-9, her team will put a “stop sale” on a product. “I can’t be everywhere all the time,” Bell admits. “I have limited resources, but do all I can to monitor sales.” She knows companies selling bad products exist, because she’s caught many of them already.
Nathalie Bougenies, an attorney at Harris Bricken in Washington D.C. whose work focuses on the regulatory framework of hemp-derived CBD products, believes that most people making and selling hemp-infused products are doing their best to be compliant with existing regulations. But, she says, “you have companies out there that have been taking advantage of the situation, which explains why we’re finding products in places like 7-Eleven, a place where minors go. There [are states where there] aren’t regulations about limiting the sales to people 21 and older. That’s partially how you’ve ended up with this unregulated market that’s enabled bad actors to thrive for the time being [and] put public health at risk.”
I don’t know if I would have characterized my experience with my watermelon gummy as a public (or personal) health risk at the time. Yes, the high was stronger than I expected, and I’d felt paranoid — but it wasn’t all bad. I became hyper-focused on specific things, like Swiffering every dust bunny off my floor, and got to wake up the next day with a sparkling apartment. It was only later, after Encore Labs responded to my email asking for more information about the COA for the Hempire Direct gummy I’d taken, that my experience began to seem shadier.
“The COA that you have provided is a fake COA, meaning that this vendor has taken an older report template of ours and modified [it] to add their information and pass it off as something tested by our lab,” said Evelyn Alvarez, the quality assurance director of Encore Labs. “Therefore, I cannot confirm that we tested this product. Unfortunately, this is not the first time we have seen something like this, but this is the first time that we have been made aware of this company in particular.”
Later, on the phone, Alvarez told me: “CBD manufacturers, now Delta-8 manufacturers, change these reports to essentially make it beneficial for them. It can appear as though it’s been tested, make it appear like it’s a higher concentration, and unfortunately make it appear that it’s clean — even if we have tested it and it has failed.” I sent Alvarez three other gummy COAs used by the Hempire Direct site; they all named Encore Labs as the testing lab, and Alvarez confirmed they were all edited and “fake.”
Another COA on Hempire’s site for a “M Series 2 Cartridge heavy metals test” listed a different lab, PhytaTech Metrics & Solutions (which has since changed its name to Kaycha Labs Colorado). I emailed the contact named on the COA, and the lab director Stephen Goldman responded to tell me that the COA seemed to have been photoshopped or similarly altered.
“They took our COA and edited it, thereby falsifying it,” Goldman said. “The company name is different on the real COA that I have. All four of the sample names are different. And we actually came back with small numerical values for mercury and lead and this says ‘not detected.’” It’s unclear whether Hempire Direct tested their own product or not. Hempire Direct didn’t respond directly to multiple requests for comment on this particular claim.
Refinery29 also reached out to Marin Analytics, an unaccredited lab that was listed on the COA for “Hempire Direct’s Delta 8 Distillate 95% Syringe Potency,” a more concentrated extract that can be used in edibles. Sara Biancalana, the CEO and chief scientist, said that the lab report Refinery29 sent her was legitimate.
If you’re taking a product that doesn’t have a legitimate COA, there are a few things to worry about. Namely, some products may have virtually no Delta-8 in them at all, says Lewis Nelson, MD, chief of the division of medical toxicology at Rutgers New Jersey Medical School. Often, products contain more than 0.3% of Delta-9 THC, despite what they claim, Bell adds. In one subset of a random sample of Delta-8 products that her department collected in the past year, seven out of 10 had higher concentrations of Delta-9 THC than is legal. She believes, though, that things have been improving recently, as manufacturers get better at making Delta-8 and it becomes more popular.
Another concern is the potential for possibly dangerous health consequences. “The lack of regulation means that your Delta-8 may have additional compounds or solvents that could make you sick when they’re consumed,” says Solonje Burnett, co-founder and CEO of the cannabis educational experience and consulting agency Humble Bloom. “It isn't about the Delta-8 itself. It's the process of extraction which could lead to adverse effects. Some Delta-8 products contain compounds not allowed by state law in regulated cannabis products, including metals like copper, nickel, and lead. Others have been tested, and traces of solvents — the chemicals used in the process to separate Delta-8 THC from hemp — at levels not safe for human inhalation have turned up.”
“People think they’re only consuming cannabis, but there could even be fentanyl in some of these products.”
I told a few experts that this reminded me of the black market THC vapes that, a few years ago, were shown to contain harmful toxins such as vitamin E acetate, an additive often found in the THC vaping liquid. This turned out to be a major health hazard; lung injuries from vaping have been tied to at least 68 deaths, according to the Centers For Disease Control and Prevention. Bell said it was a fair comparison, at least for untested products. Separately, both Dr. Gerdeman and Burnett likened aspects of Delta-8 to K2 or SPICE, a synthetic cannabinoid with dangerous health impacts, such as kidney damage and overdoses.
The U.S. Cannabis Council, a trade organization, tested 16 samples of Delta-8 products and found all but one contained illegal amounts of Delta-9 THC (per the Farm Bill). Four of the 16 samples contained the heavy metal lead, and seven failed the limits for inhalation on copper, chromium, or nickel set by the United States Pharmacopeia, a non-profit, independent medicinal standards organization.
Matthew Curran, PhD, a chemist and the director of the Florida Department of Agriculture and Consumer Services Division of Food Safety, and his team have been testing hemp samples over the past couple of years — including, more recently, Delta-8 — and have found many containing lead. Lead can have negative impacts on the body, including brain damage, when ingested, especially by kids with developing brains and those who are pregnant. One potential source of lead is product packaging, Dr. Curran’s research suggests. For instance, he’s seen that the concentrations of lead in some hemp extract tinctures have slowly increased over time, leading him to theorize that it’s possible that the heavy metal could be getting into the tinctures via droppers that use lead to mark dosage levels. If that’s the case, some such extract could pass a lab test for lead prior to being sold, since the heavy metal would slowly leach into the product over time. This is just one potential source, he adds.
Dr. Curran, Bell, and the rest of their team have brought their research to the hemp industry, and have seen improvements. “Through much education, communication, and enforcement, we have seen a decrease in lead violations over time, in so far as tested,” Dr. Curran says.
But if an unqualified person or someone working outside of a proper lab is attempting to make Delta-8 — what Dr. Curran calls “kitchen chemistry” — there’s still a risk of residual contaminants ending up in the finished products, which can lead to human health concerns, or too-high levels of Delta-9 THC in a product. “Synthesizing Delta-8 is easy enough to be dangerous,” adds Dr. Gerdeman, who’s also the chief scientific officer of Tennessee Farmaceuticals and CEO of NASHCX. “So you can’t just be getting it from anybody.”
Knowing all this, should consumers be “getting it” at all? Steven Hawkins, the CEO of the U.S. Cannabis Council, considers himself “incredibly pro-cannabis,” but he went as far as to say: “I would advise no one to use Delta-8 or any product that’s not going through some level of regulation.”
“The cannabis industry can be very scary and unregulated,” says Yasmin Hurd, director of the addiction institute at Mount Sinai and a professor of psychiatry, neuroscience, and pharmacological sciences. “People think they’re only consuming cannabis, but there could even be fentanyl in some of these products.” Although there haven’t been any prominent reports about fentanyl associated with Delta-8, Dr. Nelson echoed Hurd’s worry separately, without being prompted. “I haven’t seen fentanyl-laced gummies, but there’s no reason to believe that couldn’t happen,” he said. “There’s always concern when you’re buying an unregulated substance and don’t know what’s in it.”
After I found out that the COA attached to my watermelon gummy — and the COAs of several other Hempire Direct Products — weren’t what they first appeared to be, I attempted to go to the source itself: Hempire Direct. After weeks with no response, I was stunned when, at the very end of June, a source forwarded me an email blast from Hempire Direct saying that its site was now shuttered and its products would all be available on a new domain: buydelta8online.com.
The next day, I was able to reach Benjamin Boyce — the “authorized member” of Hempire Direct, according to its registration with Florida’s Division of Corporations, making him a key player in the company — by phone. I asked Boyce about the claims that certain COAs found on Hempire Direct’s website were falsified, but what he wanted to talk about first was the fact that the Hempire Direct site had just been “shut down.”
Boyce sounded despondent. He said he’d been served by Swisher International (best known for their Swisher Sweets cigars). Swisher also sells rolling papers branded under the name “Hempire,” and because of the similarities in names, they’d essentially shut Hempire Direct down, Boyce said. (Swisher didn’t respond to multiple requests for comment from Refinery29.) This was very upsetting to Boyce, who describes himself as a “cannabis industry giant,” who has changed the industry for good by mobilizing fleets of eco-friendly cannabis delivery vehicles and for putting THC vending machines in malls. “Am I doing okay with all that? No,” he said. “I just lost a million dollars in fucking advertising. I fucking just lost everything I’ve built in the last — what if somebody killed your child? That’s how I feel. I feel like somebody killed my baby.”
Still, I wanted to know about the COAs. Although some labs do allow their customers to pay to make small changes to COAs, such as official name changes, it’s not okay for manufacturers, retailers, or anyone else involved to tamper with COAs themselves. In Florida, where Hempire Direct was registered as a business, if anyone other than the lab that did the testing tampers with a COA, it’s a violation. Bell said if she saw this was happening, she would put a “stop sale” on the product. From there, she’d issue the company a “written warning [and then] a fine as step one, and I’d continue to monitor those products and the company to make sure it doesn’t happen again,” she says. “If we have habitual offenders, we do address it. Ultimately, we could take them to court and shut them down.”
Hempire Direct, of course, has already been shut down. And yet Boyce was reluctant to talk about the COAs. He asked for a few details about the COAs Encore and Kaycha labs had told me were fraudulent, which I provided, and then said, “Publish whatever the fuck you want, blow me up, love it!” After a few more profanities, he hung up. When I called back, Boyce said, “I think those lab reports were from an old manufacturer, and we just didn’t update the new ones and now we can’t update the new lab reports because Swisher Sweets stole my domain, and that’s my final comment on that.”
But it wasn’t. In a subsequent phone call, when asked who the “old manufacturer” he’d referred to was, Boyce asked, “You don’t know how to shut up, do you, bitch?” When I confirmed that I didn’t, and asked again who his old manufacturer was, he just said: “God.”
Whether or not these falsified COAs were obtained by Hempire Direct or one of its manufacturers, Bell says that, ultimately, Hempire Direct would be held responsible first. “We start with the retailer,” Bell says. “The retailer is responsible for the product they put on their shelf [or sell online].” Additionally, her team would try to find out where the falsified COAs originated and then hold everyone involved accountable.
Holding Boyce accountable is something others have tried to do in the past, and it didn’t go well. Brock McLarty, who forwarded an email correspondence between himself and Hempire Direct’s email address to Refinery29, says Boyce threatened him after McLarty reached out to ask for a discount and refund after a delay in an order shipment.
After some contentious back and forth about McLarty’s complaint, the email firstname.lastname@example.org wrote: “I just gave your $10 free and wanna be a dick go fuck your self buddy [sic].”
McLarty then asked for a number to call to complain about the customer service he was receiving. When he called the number provided in the email — the same one at which Refinery29 contacted Boyce — McLarty claims that Boyce picked up and threatened him, saying that he had McLarty’s address from his order. “He literally told me, ‘I’m going to go on out there and break your nose,’” McLarty says.
Boyce also has a criminal record. According to court documents from The Unified Judicial System of Pennsylvania obtained by Refinery29, Boyce pleaded guilty to simple assault and terroristic threats in April of 2008, again to simple assault in September of 2008, and to harassment in April of 2013. Boyce didn’t respond to a text asking for comment about his record. When I attempted to ask Boyce if he’d “threatened or bullied” customers on the phone, he said, “Hey, listen, go fuck yourself,” and hung up for the second time.
Hempire Direct is not the only company that’s been linked to COA issues. Goldman says that altered or falsified COAs happen “with depressing frequency” in the industry. That’s a problem, since it’s fair to assume that not everyone who decides to dabble in Delta-8 will think to rigorously examine the product’s COA before using it. Perhaps more troubling is that even if you do, products with authentic COAs aren’t definitely safe, because there aren’t federal regulations that standardize the third-party testing, says Alvarez. In states that aren’t regulating Delta-8 at all, companies can submit carefully selected samples they know will pass tests, and then not hold other batches to the same standards, Bell says. This is why in her state, she requires every batch be tested.
“I would advise no one to use Delta-8 or any product that’s not going through some level of regulation.”
Another consequence of the lack of regulation around Delta-8 is that it’s hard to quash bad actors. Boyce, for instance, told me that he plans to “rebrand,” saying: “I’m not going to stop, I just have to create a new brand. I’m not going to fuck with big tobacco… I’m the first company that big tobacco has gone after, if that tells you about who I am in the industry.” For now, he has buydelta8online.com.
During one of my conversations with Boyce, he told me to “go re-test my shit before you start making fucking claims about it.” So I did.
I bought two products formerly sold by Hempire Direct from buydelta8online.com. I vetted their COAs, each of which cited a different lab. Spokespeople for both of the labs said that the COAs had been altered and weren’t authentic or valid. One, Altitude Labs, said they couldn’t share what specifically had been altered on the COA. But the other, Green Leaf Labs, confirmed via phone that the sample name had been altered on the COA, and that the top right corner of the COA where the business name is usually located had been whited out completely.
I then sent these two products to Anresco Laboratories, an accredited lab in California, and had them tested for heavy metals, pesticides, and residual solvents, as well as potency. The products both passed the contaminant tests that were performed — but the potency test for the inhalable product called “Orange Fuel Delta 8 Flower” raised a red flag. It revealed that the product in question had more Delta-9 THC than the federally legal 0.3% limit, Eric Tam, a senior chemist at Anresco confirmed to Refinery29.
When Refinery29 attempted to ask Boyce about this on the phone, he said “no comment” and hung up. He did not reply to a follow-up text asking the same question. Boyce also declined to respond to various emails and a text about allegations made in this piece, including about the Anresco tests, the alleged altercation with Swisher Sweets, and the seemingly altered COAs Refinery29 discovered on both buydelta8online.com and Hempire Direct. Refinery29 also attempted to reach other representatives who worked for Hempire Direct via email, social media, and phone to no avail.
I asked Dr. Gerdeman for a second opinion on the Anresco COAs, and he confirmed that the lab results showed that the Delta-8 “flower” product was over the legal Delta-9 limit, and added that although the gummies technically weren’t over, “with edibles, there is actually tremendous leeway on the legal limits, which most regulators I think have not yet gotten a grasp of.” He says the issue is the 0.3% limit typically refers to percent by weight. Gummies are heavy, especially compared to the relative weight of a THC molecule. So one gummy could have 10 mg or more of Delta-9 THC — an amount that could get you pretty darn high — but still come in under the 0.3% limit. “Part of me thinks it’s amusing as a loophole, but I have problems with a lack of consumer information,” Dr. Gerdeman says. “A THC edible won’t kill you, but it can be seriously inebriating and distressing. It’s clearly not what the U.S. Congress intended to legalize with the 2018 Farm Bill.”
Of course, despite not having expertise in pharmacology like Dr. Gerdeman, I’m not surprised to learn that my watermelon gummy might have contained a substantial dose of Delta-9 THC. And, obviously, it didn’t kill me. Daniele Piomelli, MD, PhD, director of the University of California Irvine Center for the Study of Cannabis, said that the likelihood of being hurt by taking an untested gummy once is very low, barring an immediate allergic or negative reaction. But he warned that long-term use could potentially cause health issues.
“If you made it a habit to every day take a gummy before you went to sleep, you run a risk — a little greater than the risk you have with Delta-9 THC even, because there’s so much research on Delta-9 THC, and there’s very little on Delta-8,” Dr. Piomelli says. “And whenever you’re playing with a compound so pharmacologically full of effects [that are] affecting your physiology, it can have effects on your brain.” He adds that it’s important to be cautious with all psychoactive substances, and if you’re using them, to check in with yourself often to ensure “your life is not changed in a negative way.”
It’s certainly possible that, one day, Delta-8 will become more regulated and legitimate. But for now, it’s worth being wary before popping a gummy. If you must try Delta-8, do your research and take the extra steps of looking up the product’s COA and contacting the lab listed on it. As for me, I’ll be waiting until regulatory laws catch up to Delta-8 before I consider trying it again. There’s lots of other things to try in the meantime.
Then again, that abundance of choice might be part of the problem. "This is just one conversation of many important ones,” Bell told me, referencing the whack-a-mole-like game she’s been playing with the cannabis industry for years. “You can make Delta-8 illegal, but then you’ll have Delta-10 coming on to the scene.”