Is Delta-8 THC Legal?
Delta-8 THC, a tetrahydrocannabinol isomer of THC derived from hemp extract, currently burning up the charts, is very popular in vape cartridges & edibles. Nowadays, questions about its legality have become as popular as the substance itself. Here you can find the answers to the question that has the whole industry on its toes: is Delta-8 THC legal?
Is Delta-8 THC Legal Under the 2018 Farm Bill?
On August 21, 2020, the Drug Enforcement Administration (DEA) published its interim final rule with requests for comments, an interpretive rule of the 2018 Farm Bill, and is considered effective immediately.
The DEA interim final rule muddied the water on Delta-8 THC legality. Unlike Delta-9 THC, which is expressly prohibited unless its levels are compliant with the 2018 Farm Bill’s 0.3% threshold, Delta-8 is not referenced in the Farm Bill. The definition of Hemp under the 2018 Farm Bill expressly includes “all cannabinoid” other than D9 -THC.
For better understanding, THC has both Delta-8 and Delta- 9. These two compounds have the same formula but a different arrangement of atoms in the molecule and different properties. Delta-8 is derived from CBD hemp extract that creates the new isomer after the hemp plant has grown.
Knowing that, let’s see how the 2018 Farm Bill defined Hemp:
The term “hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9-tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.
The DEA appears to assume that only natural cannabinoids – instead of ALL – cannabinoids are covered by the 2018 Farm Bill’s hemp definition. This means that the DEA has the opinion that Delta-8 THC is synthetic tetrahydrocannabinol and, therefore, not considered under the definition of Hemp.
Here’s where the DEA goes over the line:
Thus, the AIA [the 2018 Farm Bill] limits tetrahydrocannabinol control (for Controlled Substance Code Number 7370). For tetrahydrocannabinol that are naturally occurring constituents of the plant material, Cannabis sativa L., any material that contains 0.3% or less of 9 -THC by dry weight is not controlled, unless specifically controlled elsewhere under the CSA. Conversely, for tetrahydrocannabinol that are naturally occurring constituents of Cannabis sativa L, any such material containing greater than 0.3% of 9 -THC by dry weight remains a controlled substance in schedule I.
Consequently, not only cannabis with enough delta-9 THC is a Schedule I drug under the Controlled Substances Act, but all tetrahydrocannabinol is, per Drug Code 7370.
RELATED POST: New DEA Hemp Rule (IFR)
RELATED POST: New USDA Regulations And CBD Hemp Industry
Let’s review Drug Code 7370 regarding tetrahydrocannabinol.
|Meaning tetrahydrocannabinols naturally contained in a plant of the genus Cannabis (cannabis plant), as well as synthetic equivalents of the substances contained in the cannabis plant, or in the resinous extractives of such plant, and/or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity to those substances contained in the plant, such as the following:|
|1 cis or trans tetrahydrocannabinol, and their optical isomers|
|6 cis or trans tetrahydrocannabinol, and their optical isomers|
|3,4 cis or trans tetrahydrocannabinol, and its optical isomers|
|(Since nomenclature of these substances is not internationally standardized, compounds of these structures, regardless of numerical designation of atomic positions covered.)|
It doesn’t end with the DEA restricting the broad definition of Hemp, from all cannabinoids, isomers, extracts, and derivatives, to those only “naturally occurring.” Then, the DEA goes on to call out synthetically derived THCs in its IFR:
The AIA 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 9 -THC is not a determining factor in whether the material is a controlled substance. All synthetically derived tetrahydrocannabinol remains Schedule I controlled substances.
This synthetic prohibition on THC appears aimed at Delta-8 directly. The DEA claims that a naturally occurring THC is different from a synthetic one and that the Farm bill only legalized natural forms of THC, with a max D9 threshold of 0.3%.
Then the DEA appears to hedge its bets and walk it off:
This rulemaking is modifying 21 CFR 1308.11(d)(31) to reflect this statutory change. By this rulemaking, 21 CFR 1308.11(d)(31) is being modified via the addition 9 of subsection (ii), which reads: “Tetrahydrocannabinols does not include any material, compound, mixture, or preparation that falls within the definition of Hemp set forth in 7 USC. 1639o.”
Is Delta-8 THC Derived from Hemp?
First, since the law does not define what the word derived means, we have to agree on a common definition:
- In chemistry, a derivative is a compound that is derived from a similar compound by a chemical reaction.
Does the Hemp become Delta-8 by a chemical reaction? Yes. So it is a derivative of the Hemp, under what chemists know the word to mean, but what do lawyers think?
- Black’s law dictionary defines it as: Coming from another; taken from something preceding; secondary; that which has not its origin in itself, but owes its existence to something foregoing.
For lawyers, a derivative is something coming from another but owes its existence to something foregoing. So yes, it is again a derivative of Hemp, and therefore also Hemp.
We consider that Delta-8 THC arose from a natural derivative of the hemp plant, and should also be qualified as Hemp. They are not synthetic because Hemp’s plainest meaning has them squarely as derived from CBD hemp extract.
Maybe that hemp extract crossed the line of delta-9 THC when being distilled. Still, the DEA surely did not intend to stop all hemp processing for extracting out the cannabinoids from Hemp, which is probably why the dry weight basis language was added – and should have been defined. Still, instead, we have to rely on its scientific definition.
Let’s talk about a few more definitions that aren’t there.
What does synthetic or extraction mean under the Controlled Substances Act? Undefined. The closest thing we can get is to “manufacture”:
(15) The term “manufacture” means the production, preparation, propagation, compounding, or processing of a drug or other substance, either directly or indirectly or by extraction from substances of natural origin, or independently using chemical synthesis or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of such substance or labeling or relabeling of its container; And a few other non-relevant things.
Well, that doesn’t help at all. We are not yet sure what the DEA’s intent is, but hopefully, it respects the hemp derivatives market that Congress intended to allow by the text of Hemp’s farm bill.
If you would like more information, do not hesitate to contact us.
Difference Between Delta-8 THC and Delta-9 THC in Consumption
DISCLAIMER: The following is the reported distinctions of D8 and D9 THC, we make no claims to their veracity or any claims for any health benefit and suggest you do some of your own research regarding the scientific literature on D8 which has been known and studied since the 1970s.
Delta-8 THC can be considered as the natural opposite of Delta-9 THC cannabinoid. They both affect the cannabinoid receptors but in a different way. While Delta-9 THC— which is found in more CBD products—comes into reaction with the CB1 receptor, the cannabis user can feel “”stoned”” and relaxed with a significant THC level in the metabolism. This feeling is related to the cannabis products that contain Delta-9 THC cannabinoid inside the product.
In a situation when you intake Delta-8 THC in any form (usually a degraded form of THC), the CBD receptors in the brain react differently. The body goes through the so-called state of the “lower psychotropic potency” which is why Delta-8 is not usually associated with the stoned feeling.
Delta-8 is considered a stabilizer of metabolic processes in a body, especially when the metabolism goes through difficult conditions like:
- Cognitive issues
One study conducted on mice recorded that the percent of cured mice from nausea caused by chemotherapy was a complete 100% when treated with medical marijuana that contains a more considerable amount of Delta-8 THC levels.
Considering all the above mentioned, we can say that products that contain Delta-8 THC are more effective in terms of stabilization and natural balancing of the metabolic processes than products that contain Delta-9 THC. At the same time, Delta-9 THC is significant for the CB1 receptor that produces the euphoric effect of cannabis.
Both cannabinoids are still a little bit of a mystery for researchers and medical marijuana communities that try to reveal the actual effect of both cannabinoids in the body. If we can say that they are different in psychoactive effects, then we can use them for medical and recreational purposes on other occasions. It is still left to see what future studies will show the power of both cannabis compounds.
Interested in coming on as a guest? Email our producer at [email protected].
Thomas Howard has been in business for years and can help yours navigate towards more profitable waters.
Our cannabis business attorneys are also business owners. We can help you structure your business or help protect it from overly burdensome regulations.