A Primer For Novel Cannabinoids

As the cannabis industry continues to expand into new states and as existing markets mature, operators have begun looking for new and innovative ways to sell their products. Consumer demand is evolving as well, as a growing body of sophisticated and educated customers seek more customized and tailored cannabis experiences that address their specific needs. How can operators and consumers address these emerging challenges?

The answer for many businesses and consumers has been novel cannabinoids. Also known as minor cannabinoids, these compounds are a specific subset of chemicals contained within the cannabis plant. Significantly, novel cannabinoids can have a wide variety of effects other than the psychoactive “high” typically associated with the cannabis plant.

Interestingly, many suppliers and producers not typically associated with the cannabis space have been producing products containing these novel cannabinoids. Perhaps more surprisingly, many of these producers claim their products are federally legal despite the continuing federal prohibition on marijuana.

This primer will give an overview of novel cannabinoids and some of the effects associated with these chemicals. It will also provide insight regarding the cutting-edge legal landscape of novel cannabinoids, as well as some of the concerns you may confront as an employer, consumer, or cannabis industry operator when dealing with these emerging compounds.

What are cannabinoids?

Before discussing what novel cannabinoids are, it is important to provide an initial overview of what a “cannabinoid” even is.

Cannabinoids are a specific type of compound, predominantly found in the cannabis plant. The most commonly known cannabinoids are Delta-9 tetrahydrocannabinol (“Delta-9 THC,” frequently and colloquially referred to simply as THC) and cannabidiol (“CBD”). Scientists have currently identified over 100 cannabinoids in the cannabis plant.

What do cannabinoids do?

Cannabinoids can produce an extremely wide variety of effects. For example, the psychoactive effect most consumers associate with the cannabis plant are attributable to Delta-9 THC. Other cannabinoids, such as CBD, do not produce these intoxicating effects.

What are “novel cannabinoids?”

Novel cannabinoids are a colloquial catch-all term used to refer to any of the lesser-known cannabinoids other than Delta-9 THC (again, most often referred to simply as THC) or CBD. Novel cannabinoids can generally be thought of as having more “tailored” or more specific effects than THC or CBD. These effects are wide-ranging and are affected by factors such as terpene content, flavonoids, strain, and specific user experience.

Novel cannabinoids may have a range of effects including anti-anxiety, anti-inflammatory, or appetite-stimulating properties. For example, they may target specific portions of the gastrointestinal tract or operate on certain portions of the neurological system to limit seizures.

What are some examples of novel cannabinoids?

Listed below are just a few of the most popular novel cannabinoids and what is thought to be their associated effects:

Many retail shops are now offering “Delta-8” cannabinoid products. What is Delta-8?

You may have seen an increasing prevalence in shops, including non-licensed dispensaries and retail outlets, offering a specific type of product called “Delta-8.”

Delta-8 tetrahydrocannabinol, commonly known as Delta-8 THC, is a type of synthetic, novel cannabinoid. Delta-8 THC is separate and distinct from the organic Delta-9 THC, which is specifically prohibited as a Schedule I substance and is the chemical typically associated with the psychoactive “high” of the marijuana plant.

Delta-8 THC is created when producers chemically convert commercially viable amounts of CBD. Producers argue this synthetic cannabinoid is derived from CBD, itself a derivative of hemp, and therefore is just as legal as CBD.

The truth is a little more complicated.  As described in more detail later, while Delta-8 may technically not be explicitly listed as a controlled substance, the DEA still considers it to be such. In addition, Delta-8 THC products produce an intoxicating effect, although this effect is thought to be less powerful than that associated with Delta-9 THC. Nevertheless, many retail outlets continue to offer Delta-8 products, sheltering under the ambiguity that the current legal landscape provides.

Are novel cannabinoids legal?

The answer is yes – mostly.

Only Delta-9 THC is listed as a Schedule 1 controlled substance under the Controlled Substances Act. Therefore, novel cannabinoids are technically legal so long as they are hemp-derived and contain .3% or less THC.

Publicly available products containing novel cannabinoids exist in a legal grey area and are typically not subject to stringent oversight. However, the regulatory landscape is constantly evolving. For example, in a 2020 interim final rule and subsequent letter, the DEA stated that synthetic cannabinoids Delta-8 THC and the newly popularized THC-O are to be considered illegal controlled substances because the chemicals do not naturally occur in hemp.

In contrast, states with cannabis regimes typically legislate novel cannabinoids similarly to major compounds like THC and CBD, bundling them all into a single, cohesive regulatory framework.

What are the implications of novel cannabinoids for drug tests?

Drug screenings that test for “cannabis” will typically only test for the cannabinoid THC. As such, novel cannabinoids typically do not appear on a drug test unless they are specifically sought out.

It is important to note that novel cannabinoids may still contain trace amounts of THC (specifically tetrahydrocannabinol-9). In addition, the market for novel cannabinoids is not highly regulated and consumers may come across products with large amounts of THC despite claims to the contrary.  As such, consumers of novel cannabinoid products that are not regulated by state law should be aware that these products may result in a positive cannabis drug screening.

What are the implications of novel cannabinoids for my workplace? 

The legal requirements for novel cannabinoids in the workplace vary state-by-state and depend on a given territory’s specific cannabis laws. Furthermore, novel cannabinoids are a relatively new facet of the cannabis industry and are typically not addressed in great detail in cannabis laws or jurisprudence.

Again, novel cannabinoids are generally federally legal. Therefore, unless novel cannabinoids are specifically addressed in a state’s drug laws, employers may not ban their off-duty use by employees.

Employers may generally ban employees from using novel cannabinoids on-premises, especially if the novel cannabinoid has an intoxicating effect.  Employers should be cautious in this practice, however, as some states have laws providing worker’s rights protections to employees who are registered medical cannabis users. While the law in these areas is evolving, these protections would likely extend to novel cannabinoid use.

Looking forward with novel cannabinoids.

Novel cannabinoids are likely to be the next frontier in cannabis research, production, and consumption.  The complex legal grey area surrounding novel cannabinoids means they are more likely to be offered at retail establishments and made available for consumption to the general public than more traditionally regulated cannabis products offered at a state-compliant medical or adult-use dispensaries.

Regardless of whether you are a cannabis business, general employer, employee, or consumer, the increasing popularity and imminent arrival of novel cannabinoids is likely to impact you or your operations. Consulting experienced counsel to learn about their legality, effects, and implications now can help ensure you are prepared.