Ms. Pittman said that the ultimate question of a product’s legality may be dependent on other factors, including how the Delta 8 is produced and sourced. Specifically, the lawyers said, the D.E.A.’s rule on the issue seems to suggest that Delta 8 could be illegal if it is made “synthetically” rather than derived organically.
There are currently lawsuits pending over interpretation of the D.E.A. rule.
Mr. Gilkey said he had paid upward of $50,000 in legal fees to make sure that he will not run afoul of the law. A veteran of the U.S. Coast Guard, Mr. Gilkey worked in a counternarcotics unit on boats out of San Diego. He “saw some really tough stuff,” he said, and “wasn’t happy about the war on drugs.”
He wound up running a business in Austin that sold e-liquid for vaping devices. Then in 2019, he started his current business focused on selling CBD. Late last spring, he said, he started getting calls from customers about Delta 8.
“I said, please explain to me what that is,” he recalled. Mr. Gilkey, whose company supplies other retail shops around the country with products, saw a huge opportunity. After checking with the lawyers, he started full-scale packaging gummies and vape pens and other products using Delta 8 he said he got from a major hemp supplier.
“It’s about to go mainstream,” he said. And it’s just the beginning. “There’s a Delta 10 in the works.”