What’s the Deal with Delta-8 THC?

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Delta-8 THC products are readily available, but are they really legal? For now, it depends on who you ask.

If you’ve got your ear anywhere near to the ground in the cannabis or hemp industries, you’ve probably heard the steadily growing buzz surrounding Delta-8 THC. This previously little known cannabinoid has the capability to get you high (but not too high). But is it really legal?

Previously known as “weed lite,” Delta-8 THC is one of the over one hundred identified cannabinoids in the cannabis plant. Its molecular structure is very close to its more famous cousin, Delta-9 THC, but the psychoactive effects are quite a bit milder.

And that is part of the appeal. For people who have been dipping their toes into the world of legal cannabinoids like CBD, trying a mildly psychoactive substance like Delta-9 THC feels like a manageable leap. Plus, it’s legal! Right?

Well, yes. Sort of. For now. Delta-8 THC, when it’s extracted from hemp, is currently classified as a legal cannabinoid. The 2018 Farm Bill explicitly legalized all hemp-derived cannabinoids, extracts and derivatives. Hemp is defined as a cannabis plant that contains less than 0.3% Delta-9 THC, but the Hemp Act makes no reference to other THCs.

That may sound clear, but almost certainly the members of Congress who lobbied and signed onto this bill were under the impression that Delta-9 THC was the only potentially intoxicating substance in hemp. You can be sure that the sudden prevalence of Delta-8 THC is not going without notice.

If this sounds like a loophole that is about to get closed, you’re probably right – and companies are trying to cash in while they can. Already the US Drug Enforcement Agency (DEA) may have sealed the deal with their  “Interim Final Rule” which states that “[all] synthetically derived tetrahydrocannabinols remain schedule 1 controlled substances.” 

Delta-8 THC exists in a murky legal zone, but many companies are willing to cash in on the exploding interest in the mildly psychoactive cannabinoid - even if it means running the risk of coming into the cross hairs of the DEA.

But wait. Synthetic? Is Delta-8 THC synthetic when it’s extracted from hemp? Here’s where things start to get complicated. If Delta-8 THC is directly extracted from the hemp plant, it still falls under the Farm Bill as one of the many legal cannabinoids (at least for now).

But hemp doesn’t actually produce sufficient amounts of Delta-8 THC to be commercially viable. So most Delta-8 THC has been chemically converted from CBD. Does that make it “synthetic”? The answer to this will probably either come through litigation or legislation. Either way, anyone selling Delta-8 THC knows they’re running the risk of crossing paths with the DEA.

And not everyone in the hemp industry is excited about the rise of Delta-8.

In fact, the explosion of Delta-8 THC products online is causing headaches for hemp lobbying groups who have literally spent the last several years separating the federally legal hemp industry from the rest of the cannabis industry. 

For example, the Hemp Roundtable, a lobbying group composed of dozens of leading hemp/CBD companies and organizations, supports bills like Florida’s SB1766 which establishes distinct labeling and shipping requirements for Delta-8 products and creates criminal penalties for sales of the substance to persons under 21.

In a recent interview with Forbes, Jonathan Miller (a lawyer for the Hemp Roundtable) made the organization’s position clear: “We’re alarmed by the rise of products marketing themselves as hemp and as intoxicating,” says Miller. “These products might be legal right now, but we believe they go against the spirit of the law.”

Even cannabis-friendly states like Oregon are intent on separating Delta-8 from the rest of the non-intoxicating hemp cannabinoids by bringing it under the regulatory control of the Oregon Liquor Control Commission. But regulating Delta-8 is complicated for a variety of reasons, according to Steve Marks, OLCC Executive Director:

“Unregulated hemp has no final product testing,” said Marks in a press release. “They only test for Delta-9 in the field. You can’t regulate what you don’t test for. We’re talking about two species of the same plant. And that means that federal and state regulators need to harmonize their oversight of this plant, and work towards across-the-board testing of marijuana and hemp products designed for human consumption before they enter the marketplace.”

In other words, the act of legally separating hemp (via the artificial 0.3% THC rule) from the rest of the cannabis family may end up causing more problems from a regulatory standpoint than it initially solved.

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