Delta-8 THC has recently hit online shelves and gained huge popularity, especially with users of CBD products who are making the switch to this new form of the THC cannabinoid. It’s an exciting cannabinoid being infused into cannabis products, including vaporizers, edibles, and tinctures.
However, there’s a lot of confusion around delta-8’s legal status. Different businesses are choosing to take many different approaches as to how — or whether — to develop or invest in this product. But why is delta-8 THC legal?
What Is Delta-8 THC?
Delta-8 is a minor cannabinoid found in both cannabis and hemp plants. It isn’t expressed in high enough concentrations within the plants to be viable, so it’s often synthesized from hemp-extracted CBD instead. It carries a very similar molecular structure to delta-9 THC, which is the form of THC most people are familiar with.
Both delta-8 THC and delta-9 THC provide a psychoactive effect — they can both get you high. The reported effects of delta-8 include euphoria, relaxation, light-headedness, creative inspiration, pain relief, and even the anxiety some users experience with delta-9.
When using delta-8 THC, users generally feel a lighter version of the euphoria and other effects associated with delta-9 THC. That makes this cannabinoid a more appealing choice for anyone looking for a less intense, “THC-lite” cannabis experience.
Is Delta-8 THC Legal?
It’s worth mentioning that lawmakers in 12 states have now outlawed the sale of delta-8 THC. They include:
- Alaska
- Arizona
- Arkansas
- Colorado
- Delaware
- Kentucky
- Idaho
- Iowa
- Mississippi
- Montana
- Rhode Island
- Utah
As for the rest of the U.S. right now, delta-8 THC lands in a legal gray area. It all depends on which of the current regulations you prioritize and how you interpret it in the context of delta-8’s legality.
The 2018 Farm Bill
Because delta-8 THC can be grown and extracted from hemp, it is legally distinct from cannabinoids extracted from the cannabis plant. We owe this distinction to the 2018 Farm Bill, which has legally acknowledged that hemp is different from cannabis for the first time in U.S. history.
This important piece of legislation states that cannabis containing less than 0.3% of THC is categorized as hemp. Anything that naturally derives from the hemp plant is federally legal. This definition includes all hemp-extracted “cannabinoids” (such as CBD and delta-8) and other “derivatives.”
All of this means that if you convert CBD from hemp into the delta-8 cannabinoid, you still have a federally legal hemp product. The difference is that, unlike other hemp products, this one has the ability to get the user high, albeit a milder high than is possible with delta-9. It is important to recognize however, that the federal regulations surrounding delta-8 may also conflict with a state’s local regulations on delta-8 and that is something that needs to be diligently researched.
The Interim Final Rule
In August 2020, the DEA released its Interim Final Rule (IFR). This document states that “All synthetically-derived tetrahydrocannabinols remain Schedule I controlled substances.” This presents an obvious issue for delta-8 THC, which is technically a synthetically derived tetrahydrocannabinol. That places it firmly into the definition the document is referring to. How is delta-8 THC still legal, then?
Unsurprisingly, the IFR legislation raises more than a few eyebrows around delta-8’s true legality. After all, delta-8 is a type of THC. THC is known for getting people high, which clearly sets it apart from CBD, an entirely non-psychoactive cannabinoid. The DEA has historically been hostile towards cannabis, so it’s easy to believe they might want delta-8 included under their umbrella of Schedule 1 controlled substances.
When Will the Industry Know More About the Federal Legal Status of Delta-8 THC?
State legislation is moving quickly, and regulatory bodies don’t generally like it when businesses exploit convenient loopholes around psychoactive substances. With delta-8 products already declared illegal in 12 states, many lawyers in the cannabis industry believe the federal government will soon close this legal loophole.
Right now, you can sometimes find delta-8 products in gas stations, head shops, bodegas, and many other places outside of a legal dispensary. However, expecting this boom to last forever without some kind of clampdown or further regulation feels short-sighted.
This legal uncertainty is expected to be addressed in October 2021, when the IFR is finalized. Until then, the industry is unlikely to gain any more clarity on whether delta-8 is technically legal or illegal.
What Are the Implications of Delta-8 THC’s Legal Ambiguity for the Cannabis Industry?
Delta-8 THC presents a legal grey area some opportunistic cannabis producers are all too keen to exploit. However, most companies won’t advertise the fact that delta-8 can get users high because they understand the need to stay on the right side of its legality.
Whole companies are currently dedicated to the sale of delta-8 products. One such company is No Cap Hemp Co., which pivoted from producing CBD online to complementing it with delta-8 in 2020. It now sells vaporizers, edibles, and flower that harness the power of delta-8 in commercially made products.
Example aside, any business that wishes to invest in delta-8 development or products should understand the potential risks they’re taking and how quickly the restrictions around their promising venture could severely tighten.
Is Any Sector of the Industry Opposed to Delta-8 THC?
The DEA isn’t the only party with an objection to the legal sale of delta-8 THC. In an interview with Hemp Grower, Marielle Weintraub, president of the U.S. Hemp Authority, expressed that delta-8 makes her “so angry.” She feels it gives hemp a harmful reputation and detracts from its common beneficial uses.
The hemp industry is already fighting to shake the false idea that hemp is a psychoactive substance and trying to establish its own legitimate place in the market. Although no opinion is entirely universal, it’s not hard to see why some hemp producers might oppose the legal sale of a euphoria-inducing cannabinoid derived from hemp. It threatens the image of hemp as a beneficial product for people who don’t want to get high.
Delta-8 THC — Should You Get Involved With This Cannabinoid?
When making crucial decisions about which direction to take your cannabis product development or investments in, it pays to enlist the help of industry experts. M Consulting Experts offers specialist cannabis compliance consulting services as well as cannabis product development services to match our clients’ ever-changing needs.