No, Not That Delta: What You Need to Know About Delta-8 THC

Cultiva Law, PLLC

The delta COVID variant has swept the nation this year—but so has another delta. We’re talking, of course, about delta-8 THC, a milder form of THC that’s closely related to the standard delta-9 or “regular” THC. Because delta-8 is generally derived from hemp, it’s unregulated—and therefore legal—in many places.

Here’s what you need to know.

What Is Delta-8 THC?

Delta-8 is a psychoactive cannabinoid that has a slightly different molecular structure than delta-9 THC [include molecular structure pics?]. Because of that small difference, delta-8 yields a mellower high, but it still packs a punch when it comes to health benefits.

But don’t take it from us: take it from the National Cancer Institute. As it says, delta-8 has “potential antiemetic [anti-nausea], anxiolytic [anxiety-reducing], appetite-stimulating, analgesic [pain-relieving], and neuroprotective activities.” It also “exhibits a lower psychotropic potency than delta-9 THC, the primary form of THC found in cannabis.”

Delta-8 is generally derived from hemp, or more accurately, from hemp-based CBD oil. As a result, it falls into a loophole in the federal drug laws. In most states, delta-8 is unregulated, making it legal to use, buy, sell, and possess, despite its psychoactive effects. Until the federal government legalizes marijuana entirely, delta-8 has stepped up to provide an alternative.

It’s gotten a little complicated, though.

What the Buzz Is About: Is Delta-8 THC Legal?

First, some background. Hemp was initially legalized on a limited basis by section 7606 of the 2014 Farm Bill, which defined industrial hemp as “the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” The 2018 Farm Billexpanded that authority and legalized hemp cultivation, driven in part by the push to legalize hemp-derived CBD, which is also believed to have health benefits.

Not that anyone asked us, but the federal government tied its own hands with that definition. Cannabis plants produce over a hundred different cannabinoids, of which delta-9 is just one.

At any rate, the federal government limited its definition of what is legal hemp—and what remains federally illegal marijuana—by considering only delta-9 THC and not any of its analogues, like delta-8. Therefore, if delta-8 products are extracted from hemp plants, they are, at this point, federally legal. (Note that synthetically derived delta-8 is not legal; the only route to legality for delta-8, at this point, is as a hemp derivative.)

That’s not the end of the story, of course. As of late 2021, at least 15 states have passed laws declaring delta-8 THC illegal.

So, where do we go from here?

What Happens Next?

The DEA has already made its move, listing “THC, Delta-8 THC, Delta-9 THC, dronabinol and

others” generally as “Tetrahydrocannabinols” in its Orange Book listing of controlled substances. That doesn’t necessarily make delta-8 illegal, despite what the DEA might wish, but it does open the possibility that delta-8—which does have psychoactive properties similar to those of standard THC—could be construed as a “controlled substance analogue” under the Federal Analogue Act.

The FDA has decidedly not approved delta-8 and is likely to begin cracking down on delta-8 producers. For now, it’s declared that “delta-8 THC has serious health risks,” particularly when children unwittingly raid their parents’ stash of gummies.

Both the DEA and the FDA are, of course, administrative agencies—meaning that they have the authority to create and enforce administrative laws, but not to contravene the will of the elected legislature. Their efforts to redefine cannabis isomers in a way that conflicts with the 2018 Farm Bill are tenuous at best. That said, it takes high risk tolerance, deep pockets, and tenacity to defy and legally challenge federal agencies, even when they are clearly overstepping their jurisdiction.

If the federal government were to legalize marijuana, delta-8’s legality would become a moot point … but we’re not holding our breath.

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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Cultiva Law, PLLC

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