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A loophole in federal marijuana law has led to the creation of new THC product

AUDIE CORNISH, HOST:

A loophole in federal law allows the sale of cannabis products that produce a marijuana-like high even in states that haven't legalized marijuana. There's a booming market for them in a number of states - for instance, Wisconsin. Rob Mentzer of Wisconsin Public Radio reports.

ROB MENTZER, BYLINE: The drug in marijuana that produces the high is called delta-9 THC. It's a molecule found in some strains of the hemp plant. In states with legal marijuana, producers cultivate plants with lots of this type of THC to make edible or smokable products.

In 2018, Congress passed a law making it legal to grow hemp as long as the plants didn't contain high concentrations of delta-9 THC. The law kept those strains of hemp illegal. Chris Lindsey at the U.S. Cannabis Council says it was very specific.

CHRIS LINDSEY: If you're a hemp plant, you're not subject to the Controlled Substances Act any longer, the exception being delta-9 THC. That seemed pretty straightforward.

MENTZER: But policymakers didn't address the fact that hemp plants contain other forms of THC. In the three years since, growers have learned to cultivate strains of the plant that don't fall under the federal definition of an illegal drug, but do produce cannabis that can give users a marijuana-like high.

The chemical these plants contain is called delta-8 THC. In states that haven't legalized weed, that's creating a booming market for new products that look and act like the illegal stuff. There's no federal regulation of delta-8 THC. And in more than 30 states, there are no state restrictions, and it's being sold with little regulation.

JOE DUCHATEAU: It's warm. Come on in.

MENTZER: At 3 Tall Pines Farm in rural Wisconsin, fans are running inside the greenhouse as grower Joe DuChateau gives a tour.

DUCHATEAU: In the center, we have our Pine Walker. And in the back half here, we have what's called the Forbidden V strain.

MENTZER: These are strains of hemp that are high in delta-8 THC. Three Tall Pines will turn them into smokable cannabis products sold across Wisconsin. That's despite the fact that Wisconsin doesn't allow the sale of recreational or medicinal marijuana.

Of the 18 states that have banned or restricted delta-8 products, many have legal marijuana. Those states can regulate and control what goes into the legal cannabis products. For the most part, there are no such regulations on delta-8. In Wisconsin, delta-8 is sold at head shops, health outlets and even gas stations, and that concerns some law enforcement and health officials.

In September, the Food and Drug Administration issued a warning about health risks associated with delta-8, and legal marijuana groups like Lindsey's have come out against it. Jeremy Smith owns a Wisconsin company called TabEASE that makes delta-8 mints. He says delta-8's new popularity is more evidence that all THC should be legal.

JEREMY SMITH: People are going to be utilizing THC no matter what, and so we all feel that it's a huge benefit that we can provide that to people that need it, want it, recreationally, medically.

MENTZER: Back at 3 Tall Pines Farm, owner Craig Thran agrees that the industry needs regulation. And for him, delta-8 products are not the endpoint. He thinks the future of the industry lies in medical applications, not recreational or what he calls rec products.

CRAIG THRAN: We understood that the end product for us is going to be the medical industry. But in order to get there and to get the equipment, we're playing rec. But we're also developing medical products.

MENTZER: Lindsey expects to see a wave of new regulations on delta-8 products in the coming year, both in states that now ban marijuana and those that don't. As long as it's legal, though, Thran says 3 Tall Pines has plans to expand its delta-8 business. It's launching new edible products and building new greenhouses on their farm so they can grow hemp all year round.

For NPR News, I'm Rob Mentzer in Wausau, Wis.

(SOUNDBITE OF CALEXICO'S "SPINBALL") Transcript provided by NPR, Copyright NPR.