A clear-headed high. Help with anxiety, pain, and inflammation. Along with many other potential benefits, these Delta-8 THC positive attributes can feel like hitting a jackpot. Once you know about Delta-8 and its benefits, you may immediately load up your shopping cart. But first, you must understand the complex rules and regulations of this cannabinoid.
Since it is far less psychotropic (and with fewer side effects) than Delta-9, you may think surely there is no harm in trying it, right? However, the law is complicated in the legality of this product. In this article, we will touch on whether or not Delta-8 THC is legal and explore the ins and outs of the federal and state laws on the matter.
Is Delta 8 THC Legal?
The short answer? Technically, yes. At the federal level Delta-8 is recognized as legal. However, since states can override federal law, there have been a few states that still have restrictions. A handful of states do not recognize Delta-8 THC as legal at this time. It is possibly illegal in your state, without explicit facts stating otherwise.
Currently, Delta-8 THC is illegal in these states: Alaska, Arizona, Arkansas, Delaware, Idaho, Iowa, Mississippi, Montana, and Nebraska. These statuses are all subject to change. We urge you to do your research and make sure of its legal status in your state before purchasing Delta-8.
Breaking It Down
To break down these terms and their varying legalities, let’s properly define these substances and how they are related to each other. Delta-8 THC and Delta-9 THC are cannabinoids, which are natural chemicals found in the cannabis plant. Most tetrahydrocannabinol (THC) in cannabis is Delta 9-THC. So much so that oftentimes the terms are used interchangeably. When cannabis products list the amounts of THC, this is the amount of Delta-9 THC.
Delta-9 tetrahydrocannabinol, aka Delta-9 THC, is the primary psychoactive ingredient in marijuana. Delta-8 tetrahydrocannabinol, aka Delta-8, is an isomer of Delta-9, meaning it has the same molecular properties as Delta-9, but in a different order. Delta-9 has a double bond on the 9th carbon in the chain and Delta-8 has a double bond on the 8th. Delta-8 exists in much smaller amounts in cannabis than Delta-9, making it much rarer. According to the National Cancer Institute, Delta-8 has shown antiemetic, anxiolytic, appetite-stimulating, analgesic, and neuroprotective properties.
Delta-8 THC is present in both hemp and marijuana, though it is in such minimal levels, that it isn’t worth extracting. An easier, as well as a more profitable method of extraction, is by way of electrophilic cyclization of Cannabinol (CBD), another cannabinoid.
Hemp (Cannabis sativa L.) and marijuana (Cannabis sativa, Cannabis indica, Cannabis ruderalis) both describe cannabis plants. What distinguishes them legally is the amount of Delta-9 THC in them. The hemp plant is defined as cannabis that has 0.3 percent or less Delta-9 THC. Marijuana is cannabis that has more than 0.3 percent Delta-9 THC.
Marijuana is considered an illicit substance and is deemed illegal by the United States federal government. Since Delta-8 is technically THC, you would naturally assume it is an illicit substance since marijuana is. But since Delta-8 can come from hemp, a legal substance, this is where the boundaries grow hazy. Let’s explore the legalization of hemp.
The Farm Bill of 2018
In 1970, the Controlled Substance Act banned all cannabis and marijuana substances, whether through buying, selling, possessing, or consuming. This means that cannabis was completely illegal in all its forms including extracts, oils, and isomers.
This was amended thanks to the Agriculture Improvement Act of 2018 (Farm Bill of 2018) when hemp, the plant Cannabis Sativa L, was declassified as an illicit substance. This is because hemp cannot contain more than 0.3 percent Delta-9 THC, which minimizes psychoactive properties. The Farm Bill exempted any cannabinoid that is not Delta-9 THC and is derived from hemp. This includes Delta-8 THC derived from hemp. So, if Delta-8 THC is derived from hemp, it is legal under the Farm Bill. Here is a direct quote from FDA Commissioner Scott Gottlieb upon signing the Farm Bill:
“This new law changes certain federal authorities relating to the production and marketing of hemp, defined as cannabis (Cannabis sativa L.), and derivatives of cannabis with extremely low (less than 0.3 percent on a dry weight basis) concentrations of the psychoactive compound delta-9-tetrahydrocannabinol (THC). These changes include removing hemp from the Controlled Substances Act, which means that it will no longer be an illegal substance under federal law.
Just as important for the FDA and our commitment to protect and promote public health is what the law didn’t change: Congress explicitly preserved the agency’s current authority to regulate products containing cannabis or cannabis-derived compounds under the Federal Food, Drug, and Cosmetic Act (FD&C Act) and section 351 of the Public Health Service Act. In doing so, Congress recognized the agency’s important public health role concerning all the products it regulates. This allows the FDA to continue enforcing the law to protect patients and the public while also providing potential regulatory pathways for products containing cannabis and cannabis-derived compounds.
We’re aware of the growing public interest in cannabis and cannabis-derived products, including cannabidiol (CBD). This increasing public interest in these products makes it even more important with the passage of this law for the FDA to clarify its regulatory authority over these products. In short, we treat products containing cannabis or cannabis-derived compounds as we do any other FDA-regulated products — meaning they’re subject to the same authorities and requirements as FDA-regulated products containing any other substance. This is true regardless of the source of the substance, including whether the substance is derived from a plant that is classified as hemp under the Agriculture Improvement Act.”
The Farm Bill allows us to lawfully purchase and use hemp in all 50 states. This includes forms of hemp in extracts and concentrates. Other popular hemp derivatives besides Delta-8 are cannabinoids Cannabidiol (CBD) and Cannabigerol (CBG). CBD does not contain psychoactive properties and is therefore helpful for users who do not want to feel “high”. It has a lot of the same positive effects as Delta-8 and can aid in the treatment of anxiety, depression, and PTSD. CBG has been shown to have some potential benefits in the treatment of Glaucoma, Crohn’s Disease, cancer, and IBS. These cannabinoids, like Delta-8, are still being studied, and are continuing to show more promise as time goes on.
Once the Farm Bill went into effect, the hemp industry boomed. As the demand for Delta-8 THC products as well as other derivations from hemp grows, more and more farmers are getting in on the game. With grain prices falling and laws shifting, hemp is a cheaper and easier way to produce these beneficial products. Following the path of the popular CBD, we believe Delta-8 is next in line for widespread use. That is if the government’s ambiguous, convoluted language doesn’t get in the way. One factor confusing the legality of hemp products legality is the Interim Final Rule.
The Interim Final Rule
On October 31, 2019, the U.S. Department of Agriculture (USDA) added an Interim Final Rule (84 FR 58522) stemming from the 2018 Farm Bill. This Interim Final Rule (IFR) established the U.S. Domestic Hemp Production Program and outlined a framework for regulation for the cultivation and production of hemp. It has helped tie up some loose ends from the Farm Bill but added even more confusion in other areas. The rules and regulations set forth were intended to be in effect until the final regulations are issued.
However, Congress extended the industrial hemp pilot program stemming from the 2014 Farm Bill. This will be in effect till September 30, 2021. This means that the existing hemp plans in each state will be in place for the time being. The final rules will be made public in 2021, and are expected to have many more requirements for the state’s hemp plans.
In the U.S. Domestic Help Production Program, states and Native American tribes must submit hemp production plans. These plans must meet or exceed the USDA’s standards to be approved. If the states or tribes don’t submit a plan, the federal guidelines will apply.
Under the USDA’s rules, states cannot prohibit the interstate transport of hemp. The rules also address the acceptable amounts of THC in hemp. For instance, the new regulations outline a “measurement of uncertainty” of plus or minus 0.06 percent to be considered hemp and not an illicit marijuana substance. Labs that test the plants must be officially registered with the DEA. If any of the plants fall above the acceptable range, the DEA agent must destroy the product. The issue of the exportation of hemp is yet to be addressed.
Despite the Farm Bill amendment, however, there has still been a DEA crackdown on hemp farms. The ambiguous laws and regulations in this industry have left some confusion.
As it stands right now, the IFR has laid out more confusing language to the legality issue. The IFR has criminalized synthetic forms of hemp-derived THC, which may include Delta-8. Clearly, D8 comes naturally from the hemp plant, and therefore not a controlled substance. However, since D8 can be derived from CBD, the IFR has language which may target this form of D8:
“The [2018 Farm Bill] does not impact the control status of synthetically derived tetrahydrocannabinol (for Controlled Substance Code Number 7370) because the statutory definition of “hemp” is limited to materials that are derived from the plant Cannabis sativa L. For synthetically derived tetrahydrocannabinol, the concentration of delta-9 THC is not a determining factor in whether the material is a controlled substance. All synthetically derived tetrahydrocannabinol remain Schedule I controlled substances.”
The word “synthetically” is where the confusion comes in. This statement says that any synthetically derived THC is a Schedule I controlled substance. So the question would be, is Delta-8 synthetically derived? Since D8 can be created by a chemical reaction from CBD through the use of a catalyst, this could be deemed as an illegal synthetic THC. The proposed regulations would label all tetrahydrocannabinol as Schedule I controlled substances, including Delta-8. In plain terms, it is possible the DEA could try to prosecute people producing or selling Delta-8.
To combat this broad and ambiguous language, a hemp trade association and a hemp company have filed a petition in the U.S. Court of Appeals challenging the IFR. The finality of this battle is still up in the air, leaving a lot of uncertainty for hemp farmers, producers, and dispensaries.
For us, what comes to mind with the word “synthetic”, are the synthetic cannabinoids K2 or Spice. These are man-made chemicals that are similar to the naturally occurring cannabinoids. However, due to its similarities to marijuana, K2/Spice has been marketed as synthetic marijuana that is a legal and safe alternative. These kinds of drugs are not safe though, due to their unpredictable and dangerous effects. The chemicals in K2 are made in a lab and are the most obvious example of a synthetic drug.
In contrast, Delta-8 is not synthetic but is a naturally occurring compound derived originally from a plant. It is safe, lab-tested, meets FDA guidelines, has much safer side effects than these synthetics, and has much less potency than your everyday marijuana.
The Controlled Substance Act of 1970 made previous research on cannabinoids difficult due to all the hoops to jump through, not to mention expensive. For this reason, knowledge about Delta-8 has been pretty minimal until recently. Now that hemp has been legalized, we are seeing increasing popularity in this substance and our research and knowledge base continue to grow. However, legality confusion can still be difficult to navigate.
Determining the legality of Delta-8 in your state can be as simple as determining the legality of these other hemp derivatives. Delta-8 is legal everywhere CBD products are legal. Please note that CBD is legal to sell, but not as dietary supplements or as a food/edible product. Even though hemp is legalized, any products must still adhere to the stipulations of the Federal Food, Drug & Cosmetic Act (FD&C).
A lot of people’s confusion comes from where Delta-8 is sourced. If it comes from marijuana, it is illegal. If it comes from hemp, it is legal. Be sure to not confuse Delta-9 THC and Delta-8 THC. Though similar, they are not the same. Remember that Delta-8 is exempted from the Controlled Substance Act, while Delta 9 is not. Marijuana is still deemed illegal federally under the Controlled Substance Act. Under U.S. federal law, Delta-9 THC is a Schedule I substance, which is considered on the same level of danger as drugs like heroin or LSD.
Since Delta 8 technically is THC, this can bring about more confusion. This makes the grey area a little hard to define. There are legal loopholes that can make Delta-8 completely accessible yet still illegal. For instance, Delta-8 can show up as Delta-9 on a drug test, which can make you fail and possibly face legal repercussions. Additionally, if your product was confiscated by the law and shown to be THC, you may be penalized. Since it is a new product on the market, it does not have its own set of specific laws and tests yet.
If you live in a state where marijuana is legalized, then you can legally purchase and use Delta-8. This is also the case for people with a medical marijuana card in a state where medical marijuana is legal. Delta-8 can be consumed in many of the same ways as THC by way of vape cartridges, dabs, gummies, and tinctures.
A Hopeful Future
Over our lifetime, we have seen the slow evolution of cannabis legalization. It has become increasingly accepted by our public, as well as by our government. States are slowly changing their stances, allowing for more freedom on the matter. Marijuana has become legalized in many states, and CBD has followed suit. Delta-8 will likely be next in the softening of the public and legislature, despite the current blurred lines.
Right now, the gray area of this exciting and newly popularized substance is vast. The particulars of its legalization are still being debated, thus making it a confusing issue for everyone. The outcome of the DEA’s proposed regulations will determine the legitimacy of Delta-8. But if cannabis’s long score sheet of victories is any kind of foreshadowing, we believe Delta-8 has a strong chance to rise against the opposition. Whatever the case, it must not deter from the fact that it is currently legal by federal standards. This means it is legal to buy, sell, and consume Delta-8 THC by United States law.
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