Everybody remembers their first visit to their local head shop. Well, at least I do. From the unmistakable smell of patchouli to the hand-blown glass; the mounds of Grateful Dead merchandise, and with Bob Marley playing on the in-store stereo, head shops have been a part of the counterculture scene dating back to the 1960s.
Although they’ve been around for a while, the legal hurdles faced by head shops have always been tricky to navigate. Now, with products like Delta-8, delta-9 CBD, CBG, and CBN, head shop owners suddenly find themselves in a brand new legal labyrinth.
CBD vs. THC
The passing of the Farm Bill in 2018 made cannabidiol (CBD) legal on a federal level. However, this status only applies to CBD that is derived from hemp plants with less than 0.3% THC. To make it even more confusing, some states have restricted the sale of CBD products even further.
In Idaho and Kansas, for example, all CBD products must contain exactly 0% THC. Since hemp plants do contain small amounts of THC, this means that CBD can only be extracted from a few specific parts of the plant. Not only does this make the raw product more difficult to source within these states, but the final product might not even have the same benefits as something that has a wider spectrum of cannabinoids.
We spoke with a representative from Slightly Elevated, a new brand of hemp edibles that specializes in gummies and beverages. For this conversation, they requested anonymity, so we will call this individual Steve. Steve explained how state-specific restrictions affect the business by saying: “We could not sell our drinks into those states because they have 5 or 10 milligrams (of THC). But our other four formulas? No problem selling them because they don’t contain any THC.”
While federal law prohibits the sale of cannabis products containing more than 0.3% THC by dry weight, head shops primarily operate within the hemp derived product space. Unlike dispensaries, which are state-licensed to sell higher-THC cannabis, head shops focus on federally legal cannabinoids, accessories, and alternative products. However, the legal landscape is complex, with state regulations varying widely and enforcement often inconsistent.
The State of Texas vs. Delta-8
Another issue is playing out in Texas regarding Delta-8, and the case has even been brought to the Texas Supreme Court. In 2021, the Texas Department of Health & Human Services sought to ban Delta-8 entirely. At the time of this writing, the case has yet to be resolved –leaving Delta-8 in a legal grey area for now.
However, many of those working in the hemp industry aren’t opposed to regulation. They just want standards that are fair and balanced across the board.
“We talk with legislators to give them ideas on how to regulate the industry. We want to be regulated. ”Said Steve.
What is Delta-9?
Delta-9, on the other hand, is a natural compound that is the main psychoactive ingredient in the cannabis plant. When cannabis smokers are referring to the high they receive, they’re often describing the effects of delta-9.
But delta-9 can be derived from hemp, too. When extracted from the hemp plant, delta-9 is generally considered legal as long as it contains less than 0.3%THC. In this form, it’s becoming incredibly popular in head shops across the nation. An odd twist of fate: Despite this molecule being the constituent Congress tried to regulate away with a hard limit, the language of the bill makes Delta-9 THC the most legally viable path for hemp products with a tangible effect.
What About CBN and CBG?
According to a recent study, the majority of people – 72%– have heard of CBD. In contrast, only 41% were familiar with Delta-8. Others, like CBG and CBN, came in at 18%and 17%, respectively.
Only 21% indicated that they’ve used CBD within the past year. As expected, usage numbers are even lower for other cannabinoids like Delta-8 (12%), CBG (5%) and CBN (4%). However, these other cannabinoids are mostly synthesized from CBD itself. Not only does this mean that products containing CBG, CBN, and Delta-8 are harder to come by, the laws of supply and demand mean that they’re also more expensive.
“If you look at a COA (certificate of analysis) for a hemp plant, you’re going to find anywhere from 10 to 20% CBD. Then you’ve got CBG, then everything else is in really small amounts and, realistically, most of it is synthesized from CBD anyway,” Continued Steve.
The Rise of THCA
Found in raw cannabis, THCA(tetrahydrocannabinolic acid) is a natural, non-psychoactive form of THC. When exposed to heat, either through smoking, vaping, or cooking, THCA converts into THC through a process known asdecarboxylation. This makes it a popular choice for use in products like vapes and gummies.
In its natural state, the majority of the cannabis plant’s THC actually exists as THCA. Whenever THC levels are measured for medical or recreational cannabis, what you’re actually seeing is the plant’s THCA content. The measurement is then converted with a standardized formula to determine its total THC content.
But that’s where things get complicated. The 2018Farm Bill legalized hemp and its derivatives as long as they contain less than 0.3% delta-9 THC by dry weight. Some argue that as long as a hemp product meets this threshold at the time of testing, that it should be legal – regardless of its THCA content.
According to USDA regulations, however, the formula for calculating a hemp plant’s total THC formula is THCA x 0.877 + delta-9 THC. It is structured in a way to account for THCA’s decarboxylation, or its conversion, into THC. Under those regulations, hemp plants that are rich in THCA won’t meet the 0.3% threshold. As such, they risk classification as marijuana – a substance that is still federally illegal.
As a result, THCA currently exists in a legal grey area. While manufacturers insist they’re complying with the Farm Bill, federal agencies, including the DEA, still view THCA-rich hemp as a controlled substance.
Enter the FDA
Since CBD, CBN, CBG, and Delta-8 products are meant to be consumed by users, the U.S. Food and Drug Administration (FDA) also has an active interest in the industry. In 2022, the FDA sent warning letters to several different companies regarding the mislabeling of Delta-8 products, specifically citing advertisements that promoted Delta-8 as an effective treatment for various medical conditions that, as of now, haven’t been fully researched or tested.
While the FDA has been working with Congress to help establish regulations for CBD, Delta-8, and other cannabinoids, they’ve also recently rejected petitions to allow advertising CBD products as approved dietary supplements. According to current laws, substances must meet certain safety standards before they can be marketed in this way – and CBD just doesn’t meet their standards.
“Our products are designed to really not get into that confusion of what each cannabinoid does. We’re just telling the consumer what to expect,” Steven offered when describing the products in the Slightly Elevated and Know Naturals lines.
In many cases, CBD and alternative cannabinoids can also be difficult to advertise and promote, as Steve notes: “Meta has tons of restrictions for advertising, so it’s very difficult to advertise directly. We’ve been denied some local newspaper, online, and radio spots.”
The ABCs of THC
We’ve gone into detail about CBD, CBN, CBG, THCA, Delta-8, and delta-9, but there are other alternative and emerging cannabinoids, too. Cannabichromene (CBC), cannabidivarin (CBDV),and even tetrahydrocannabivarin (THCV) are all non-psychoactive compounds that can be derived from hemp or cannabis, and they all carry unique properties that have shown promising results in their early research phases.
Editor’s Note: This industry has always operated in the gray, adapting an devolving with each regulatory shift. That’s not a weakness—it’s a testament to its resilience. The discussion around THCA’s legal status is complex, but presenting the facts is not a critique of those building businesses in this space. We are not here to denigrate or discourage the work of entrepreneurs pushing the industry forward. Instead, we aim to inform, ensuring that those navigating this landscape can do so with clarity, confidence, and the ability to pivot when necessary
