Delta-8-THC: Legal THC?

Burns & Levinson LLP

Burns & Levinson LLP

Delta-9-tetrahydrocannabinol (popularly referred to as THC) is widely considered the rock star of cannabinoids. However, Delta-9-THC isn’t the only cannabinoid with psychoactive effects that are emerging on the scene. In fact, it was forced to share the spotlight with its lesser-known cousin, Delta-8-THC, in a recent Rolling Stone article. Does this mean we should expect to see a new cannabinoid rising star on the horizon?

As Rolling Stone highlighted in its article, there is good reason to buy into the hype surrounding Delta-8.

In some ways, Delta-8 sounds too good to be true. But it isn’t. For people who want to feel the psychoactive effects of Delta-9 yet find it gives them paranoia or anxiety, Delta-8 is a quasi-legal option available online. And unlike Delta-9, Delta-8 is significantly cheaper, making it a viable option for some people looking for a short uplifting feeling without being intoxicated. But judging by how much attention Delta-8 has been getting by law enforcement, the trend might be short-lived. Despite the burgeoning success of Delta-8 over the past year, any day can be the cannabinoid’s last.

In fact, the two analog cannabinoids share a lot in common. They are nearly identical from a molecular perspective. The difference between the two is in the placement of the double bond.  Indeed, Delta-8 contains over half of the psychoactive potency of Delta-9.

Still, open questions involving certain aspects of Delta-8’s legality remain. At a minimum, various legal complexities surrounding Delta-8.  On the one hand, Delta-8 is almost certainly legal if derived from hemp. Under the Agricultural Improvement Act of 2018, also known as the 2018 Farm Bill, hemp-derived cannabinoids are considered hemp and therefore are not controlled substances. On the other hand, the most common process to produce Delta-8 is to synthetically alter CBD into Delta-8.  While this process is generally considered a more cost-effective method of producing wholesale hemp, it is also banned at the federal level. Further complicating matters, it remains to be seen whether Delta-8 may face increased scrutiny from federal regulators, such as the Drug Enforcement Agency and Department of Justice.

In any event, an increasing number of businesses seem to be diving headfirst into the Delta-8 market. Therefore, this will be a hot space to watch going forward.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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