Legal and Regs

The probability Delta 8 will remain legal in the majority of states

Written by Lydia Kariuki

Delta-8 tetrahydrocannabinol (D8) has risen steadily in popularity in the recent past. At the same time, it has been a subject of controversy and speculation. It can be said that this delta-9-THC molecular sibling has attracted love and hate in equal measure.


Here’s why.

D8 is a hemp derived cannabinoid that is very similar in structure to the psychoactive cannabinoid Delta 9. The difference between the two is the location of the double bond; the eighth and ninth carbon chain respectively. That said, both compounds can trigger feelings of euphoria when consumed in high doses, albeit to different degrees.

Hemp, which is legal federally, must contain less than 0.3% THC. Consequently, it is accurate to say that Delta-9-THC is the psychoactive compound that makes cannabis illegal.

D8, which is intoxicating, can be extracted from legal hemp, and that is what throws a spanner in the works.

Since its “discovery” D8 products in many formulations have found their way to store shelves and shopping carts even in states where cannabis remains illegal. D8 is providing an opportunity for consumers to “get high legally.” As one might guess, the legislature is not very happy with this and soon the tide will be turning.

According to New Frontier Data, at least $10 million worth of D8 was sold last year during the D8 boom. Clearly, this cannabinoid is causing ripples in the market.

D8 is found in hemp in minute amounts. Extracting it from hemp directly is not commercially viable. However, manufacturers have found a way around it and are making synthetic D8 and offering it to consumers. But even in this case, synthetic D8 might still be under scrutiny because of the Federal Analogue Act which was passed in 1986 to combat the use of synthetic analogues of Schedule I or Schedule II controlled substances.

Already, 12 states have moved to restrict the sale of D8 products. This includes Montana, Iowa, Kentucky, Colorado, Rhode Island, Utah, Arkansas, Alaska, Delaware, and Mississippi.

North Dakota, Illinois, Michigan, Oregon, and Alabama are having similar discussions that may lead to restricting D8 sales.

However, in an unexpected twist, Florida legislature is moving to rubberstamp the legality of D8.

Will other states follow suit?

The US hemp authority which is responsible for certifying hemp products has decided against certifying products that contain D8.

The National Hemp Association seems to be on the hate-side of the divide, understandably so. You see, the 2018 Farm Bill vouched for the acceptance of hemp as a plant like any other. But before this dream was fully realized, in came D8 and muddied the water; now hemp ‘can make you high.”

Erika Stark, exec director of the National Hemp Association, has consequently described the legality of D8 as “complicated.”

On the other hand, Jeff Greene, who is the development director for The Florida Hemp Council thinks contrary. He says that delta-8 played a significant role in helping hemp farmers dispose of their excess biomass in last year’s flooded market.

In his assessment, D8 will break the monopoly that cannabis has in the recreational market and the best approach would be to collaborate instead of “shooting at each other

For now, with only 15 states that have taken a stand it will be premature to preempt the turn of events with D8. However, there is good reason to remain cautiously optimistic that D8 will remain legal in a majority of states.


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Lydia Kariuki

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