Legal and Regs

The Legal Grey Area That Is Delta 8

Written by Derek Johnson

Delta 8 tetrahydrocannabinol (D8 THC) is taking the cannabis market by storm. In the past year, the cannabinoid has made its way to numerous retail outlets and, in some places, has surpassed cannabidiol (CBD) in popularity. However, there are questions regarding its legality that both producers and consumers need to be aware of.

D8 THC is a psychoactive cannabinoid that is not quite as strong as Delta 9 THC, but it still gets its users high. It appears in very low levels in both marijuana and hemp cannabis and is produced primarily through the isomerization of CBD extracts.

Now, according to federal law, Delta 9 THC is illegal as well as its analogs. An analog of an illegal substance is a drug that shares a similar chemical structure with the illegal drug. Additionally, its effects on its users will mimic those of the illegal substance.

Delta 8 THC is an analog of Delta 9 THC, and because of this, you would think it would be cut-and-dry illegal. However, the Delta 8 THC being produced and sold in stores is made from hemp plants, which are 100% legal under federal law if they contain less than .3% THC.

According to the 2018 Farm Bill:

The term ‘hemp’ means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.

Therefore, D8 THC as a substance is legal under Federal Law. However, according to many legal scholars, the process by which D8 THC is achieved likely isn’t. In an interview with Rolling Stone Magazine,  founding member of the Texas Association of Cannabis Lawyers and member of Texas NORML Joseph Hoelscher stated:

“While Delta-8-THC is legal if derived from hemp, the process most commonly used to produce Delta-8 — synthetically altering CBD into Delta-8-THC — probably isn’t legal.”

The DEA is currently crafting rules related to the full implementation of the 2018 Farm Bill, which will help clarify the legality of D8 THC, other cannabinoids and substances found in cannabis and the processes used in their extraction and manufacture.

In other words, there is a federal grey area over the US for the time being. However, this hasn’t prevented D8 THC from appearing on the shelves throughout the nation, except, of course, in those states where both hemp and marijuana-sourced CBD (and therefore D8 THC) are illegal and where D8 THC is expressly forbidden at the state level.

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Derek Johnson

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