Legal and Regs

The Delta 8 THC Loophole

Written by Derek Johnson

Huge strides have been made in the past few years towards fully legalizing and regulating cannabis, including marijuana and hemp. However, there have been and still are some sticky issues that are causing some bumps along the way. One of them is Delta 8 tetrahydrocannabinol (D8).

D8 is a cannabinoid that is found naturally in marijuana plants. Like D9 tetrahydrocannabinol (D9), it is psychoactive, but not as strong. However, the concentration of naturally-occurring D8 in marijuana plants is so low, that it does not make much economic sense extracting it, as is done with D9, cannabidiol (CBD) and other known cannabinoids. Instead, D8 is produced by rearranging hemp-derived CBD molecules into D8 molecules through a process called isomerization.

Now, here’s the rub with D8: D9 THC and all THC analogs are illegal under federal law. And the Drug Enforcement Administration (DEA) considers D8 a THC analog. However, according to the Farm Bill of 2018, which legalized hemp, all derivatives of hemp, including extracts, are legal. Therefore, proponents of D8 argue, D8, which is produced from hemp-extracted CBD, is also legal.

This conflict of federal laws has created a loophole for D8 production and consumption, and the industry has taken well advantage of it. D8 production and sales have skyrocketed and continue to grow. It has been especially popular in states that have not legalized the recreational use of D9. However, as state legislatures have seen the rise of this “new” cannabinoid, they have have stepped in and effectively closed this loophole with legislation targeting the production and sale of D8. As of the beginning of the summer, some 15 states had D8 laws on the books. And it is expected that more will follow suit.


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Derek Johnson

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