Delta-8, Chocolate Mushrooms and Black Tar Heroin May Fall in Legal Gray Area

By CJ Baker

Special to the Wyoming Truth

For months, Wyoming lawmakers have been pondering what to do about delta-8, a marijuana-adjacent substance that became legal alongside hemp. But last month, the Legislature’s Joint Judiciary Committee was told that other substances, including black tar heroin, may fall through some loopholes in Wyoming law.

State statute categorizes drug offenses in several different ways, including by the form the substance takes — whether that be a plant, liquid, powder/crystal, pill/capsule, cocaine-based crack or LSD.  But sometimes the substance that arrives at the State Crime Lab for testing “does not fit into one of these categories,” Assistant Attorney General Kellsie Singleton told the Joint Judiciary Committee on April 24. For instance, Singleton asked, if liquid THC was added to a gummy bear or Cheeto, should it still be treated as a liquid?

Lawmakers spent years debating how to handle marijuana edibles — and Singleton said Wyoming prosecutors still differ on how to classify everything from black tar heroin to chocolate mushrooms and THC wax.

“Some even say that [these drugs] won’t fit into any category so they won’t prosecute them at all,” Singleton said.

Sarah Barrett, a senior forensic analyst at the State Crime Lab, recalled a 2019 case in which the Campbell County Sheriff’s Office caught a driver with 0.7 grams of liquid heroin and his passenger with roughly 26 grams of black tar heroin.

The driver with the syringe received a felony for possessing a controlled substance in liquid form and spent about eight months in jail. But the passenger caught with the substantially larger amount of black tar heroin wound up with a misdemeanor possession charge “because of the form issue,” Barrett said, and Campbell County District Court records show he served about five-and-a-half months. The man did receive a felony conviction for trying to hide the near-ounce of heroin as he was booked into jail, but “the fact that he got a misdemeanor citation on that quantity is concerning,” Barrett told the panel.

Whether it’s a widespread issue is unclear. Park County Attorney Bryan Skoric told the Wyoming Truth he’s never had trouble prosecuting black tar heroin cases.

Law enforcement officials aren’t finding much of the substance in his northwest Wyoming county, and “we’re just not struggling with … figuring out what it is,” Skoric said.

However, the prosecutor said he also understands the issue with black tar heroin: “It’s like, well, it’s not powder. It’s not liquid. It’s not plant form. What is it?”

At last month’s committee meeting, Fremont County prosecutor and state Rep. Ember Oakley (R-Riverton) suggested the state eliminate the substance’s form as an element of a drug crime. The committee agreed to consider reworking the statute.

The panel is also taking specific aim at delta-8 THC, drafting a bill that would ban the substance.

Blurred lines

Wyoming and federal lawmakers opened the door to delta-8 a few years ago, when they legalized hemp. Like marijuana, hemp is a variant of the cannabis plant, but it doesn’t produce a high, as it contains a far lower concentration of the psychoactive substance THC. However, when the less potent delta-8 THC from hemp is concentrated in a product, it can offer “a fun, mood-altering buzz,” as one national retailer advertises. It can also bring side effects: In the first half of the school year, a half-dozen students in Cody reportedly wound up in the emergency room after using delta-8.

Before legalizing hemp, state lawmakers were told no one would be getting high off the plant, so the rise of delta-8 caught some off-guard.

“… I have so many constituents who have come up to me and asked, ‘What exactly are we doing here in Wyoming?’” said Sen. Bill Landen (R-Casper), adding, “When we legalized hemp products, it just feels like we blurred the lines all over the place.”

Under the law, delta-8 THC is only legal if it’s naturally derived from hemp. Barrett and other analysts believe most products feature synthetically modified and constructed versions of the compound, which remain illegal. But “it’s proving that that’s the problem,” she said, because there’s no scientific way to determine if the delta-8 is natural or synthetic.

To resolve the issue, some judiciary committee members suggested making all forms of delta-8 illegal.

“… I believe there has to come a point where we draw some sort of line or we’re going to continue to see this spiral out of control,” said Rep. Jeremy Haroldson (R-Wheatland).

If the Legislature prohibits the substance, DCI Director Ronnie Jones said he’d want to reach out to the stores selling delta-8 products, educate them on the change and give them time to comply.

“I just don’t think it would be appropriate for us to come in on day one and seize all of their inventory and affect their livelihood,” Jones said.

The educational approach worked well when the status of CBD products was in doubt, he said.

However, Rep. Rachel Rodriguez-Williams (R-Cody) indicated she did not want to delay the enforcement of a delta-8 ban.

“We’ve had several students go to the ER as a result of the loophole in the law and this product being available on the shelves in my community,” Williams said, arguing the public health risk overrides the business interests.

She asked whether DCI could start notifying retailers now that lawmakers intend to ban delta-8 products during their February 2024 Budget Session. Jones noted the Legislature may reject the proposal, and if it fails, “I don’t know what we would accomplish,” the director said.

The Judiciary Committee will consider draft legislation on delta-8  and the references to drug forms at its September meeting. If the panel sponsors the bills, they’ll proceed to the full Legislature.