Delta-8-tetrahydrocannabinol (delta-8, or delta-8-THC for short) is a controlled substance and is federally illegal under the Controlled Substance Act (21 USC § 802(16)(B)) . However, the 2018 Farm Bill that legalized hemp and cannabinol (CBD) inadvertently opened a loophole by which manufacturers believe they can legally create delta-8-THC by chemically converting CBD. In response, the US Drug Enforcement Agency (DEA) made a ruling in August 2020 to clarify that delta-8-THC made from CBD was likewise a controlled substance that cannot be sold by online or retail CBD stores .
The CBD industry sees delta-8-THC as a way to increase profits as CBD sales and prices become less enticing. However, there is a greater public health concern especially since online age verification is not 100% effective in preventing minors from obtaining the substance. In fact, The Hemp Industries Association fired back and sued the DEA . They are claiming that the DEA is wrongfully criminalizing delta-8-THC and many CBD retailers continue to sell products openly.
Now Colorado regulators are reinforcing the DEA ruling with their own ban on delta-8-THC . Their May 14, 2021 notice is brief but concise, saying:
“The Division of Environmental Health and Sustainability (“Division”) within the Colorado Department of Public Health and Environment (“Department”) is providing this notice to industrial hemp registrants to clarify that chemically modifying or converting any naturally occurring cannabinoids from industrial hemp is non-compliant with the statutory definition of ‘industrial hemp product.’ This includes any process that converts an industrial hemp cannabinoid, such as CBD isolate, into delta-9, delta-8, delta-10-THC, or other tetrahydrocannabinol isomers or functional analogs.”
Delta-8-THC is also explicitly illegal in Alaska, Arkansas, Arizona, Delaware, Idaho, Iowa, Mississippi, Montana, Rhode Island and Utah. Most online sellers do not take a proactive approach and ban shipping to these locations. Many will assume that it is the purchaser’s responsibilities to act within what is legal where they reside.
While the hemp industry is fighting to retain revenues from the delta-8 market, others are asking why an intoxicating substance should be so accessible and unregulated. It would be quite an unusual surprise for courts to rule in favor of The Hemp Industries Association and continue to allow an unregulated intoxicant to be sold without oversight. Even if that case is won, state laws prohibiting delta-8-THC will still remain effective.
- 21 U.S.C. § 802 – U.S. Code Title 21. Food and Drugs § 802. Findlaw. Published 2020. Accessed May 18, 2021. https://codes.findlaw.com/us/title-21-food-and-drugs/21-usc-sect-802.html
- Colorado Department of Public Health & Environment. Published May 14, 2021. Accessed May 18. 2021. https://hempindustrydaily.com/wp-content/uploads/2021/05/CDPHE.pdf
- HEMP INDUSTRIES ASSOCIATION; AND RE BOTANICALS, INC., Petitioners, v. DRUG ENFORCEMENT ADMINISTRATION; AND TIMOTHY SHEA, ACTING ADMINISTRATOR, DRUG ENFORCEMENT ADMINISTRATION, Respondents. PETITION FOR REVIEW. Published September 18, 2020. Accessed May 18, 2021. https://hempindustrydaily.com/wp-content/uploads/2020/09/Petition-for-Review.pdf
- Implementation of the Agriculture Improvement Act of 2018. Federal Register. Published August 21, 2020. Accessed May 18, 2021. https://www.federalregister.gov/documents/2020/08/21/2020-17356/implementation-of-the-agriculture-improvement-act-of-2018
Image: https://unsplash.com/photos/cVnIVINgS0s by Fr. Daniel Ciucci on Unsplash