Kentucky Gets It Wrong On Delta-8 THC

As a large hemp producing state, Kentucky is important to the hemp industry. It is often perceived to be “ground zero” for hemp law since it is home to two outspoken and hemp-friendly Senators; it sued the Drug Enforcement Administration (DEA) when the DEA seized imported hemp seeds coming into the state; and it submitted the first proposed plan to the US Department of Agriculture (USDA) under the Agricultural Improvement Act of 2018 (2018 Farm Bill), though the plan has effectively been withdrawn. For this reason, it is particularly notable when Kentucky gets it wrong on an important hemp issue. Unfortunately, this occurred today in a legal opinion on delta-8 tetrahydrocannabinol (D8 THC) issued by the Kentucky Department of Agriculture (KDA), which I have pasted directly into this article below. 

In response to inquiries about the legal status of D8 THC, the KDA contends that: 

“Delta-8 THC is a Schedule I controlled substance under federal law and Kentucky law; that distributing products containing this substance is illegal; and distributing such products could lead to your expulsion from the Hemp Licensing Program as well as potential exposure to criminal prosecution.”

Although the KDA does not regulate or police controlled substances in Kentucky or anywhere else, I am not surprised it chose to opine on D8 THC. The KDA and numerous other state departments of agriculture have addressed the legal status of cannabidiol (CBD) over the years, as its production and sale directly affect their licensees. It makes sense that the KDA wants to express an opinion on D8 THC, though it has limited authority to enforce its position, since D8 THC is having a major (positive) financial impact on the hemp industry. What shocks me is how far the legal opinion misses the mark. I disagree with the KDA’s conclusion, as do most of my colleagues. The most breathtaking feature of the legal opinion, however, is that its analysis completely misses the issue, namely that hemp and cannabinoids derived from it, including D8 THC, are removed from the Controlled Substances Act (CSA). Without an understanding of this basic and fundamental issue, which was resolved by the passage of the 2018 Farm Bill, the KDA was bound to come to the wrong conclusion. [Please note that this article is a response to the KDA’s legal opinion on D8 THC. It is not intended to analyze the legal status of D8 THC, which I do at length in an article you can read by clicking here.]

The KDA opinion starts its discussion with federal law, which it completely botches when it states:

“Let’s begin with federal law. As you know, in 2018 Congress created a narrow exemption from the Controlled Substances Act’s definition of “marijuana” (DEA numbers 7350 and 7360) for hemp that contains not more than 0.3% total Delta-9 THC. Cannabis with total Delta-9 THC in excess of that threshold remains a Schedule I substance.

There is no equivalent exemption for Delta-8 THC. That being the case, the manufacture and marketing of products containing Delta-8 THC, in any quantity or concentration level, remains prohibited by federal law.

And indeed, the federal Drug Enforcement Administration’s Controlled Substances List states that Delta-8 THC and other forms of THC are Schedule I controlled substances.”

This position completely ignores the fact that Congress created an expansive definition of hemp, which bears repeating here since the KDA distorted it. The 2018 Farm Bill defines “Hemp” as:

“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.” (emphasis added)

D8 THC is a cannabinoid. When D8 THC is derived from hemp it is lawful by definition since it contains no more than 0.3% delta-9 THC. In fact, it does not contain any delta-9 THC. Although they are similar in their molecular structures, D8 THC and delta-9 THC are two separate and distinct cannabinoids. To say the 2018 Farm Bill provides a “narrow exemption” totally overlooks that hemp produces more than one-hundred distinct cannabinoids aside from delta-9 THC, including D8 THC, all of which have been removed from the federal CSA. Specifically, according to the CSA, “tetrahydrocannabinols” are controlled substances, “except for tetrahydrocannabinols in hemp (as defined under section 1639o of title 7)“. [Note- section 1639o of title 7 is the 2018 Farm Bill’s definition of “hemp”.]

In other words, to say that D8 THC is a federally controlled substance when derived from hemp is simply wrong. D8 THC is only a controlled substance under federal law when derived from marijuana. (See, eg, the Source Rule, which applies equally to D8 THC and to other cannabinoids, such as CBD.)  

The KDA opinion continues by asserting that because D8 THC is illegal at the federal level it is also illegal under Kentucky state law. (“Because Delta-8 THC is a Schedule I controlled substance under federal law, it remains a Schedule I controlled substance under state law as well.“) Given that the KDA’s analysis of federal law is incorrect, how can I even begin to address its analysis of state law? 

Despite the fact that the KDA got it wrong, it is clear that Kentucky is not a friendly state for D8 THC. This is unfortunate, both for the state of Kentucky’s hemp program and for its licensees. D8 THC is currently in high demand and has revived an industry in which many, and perhaps most, participants have struggled financially. On a daily basis, I hear from clients that D8 THC helped keep them in business over the past 12 months.

Kentucky had an opportunity to be a leader on an important issue. Instead, and as with its prohibition on smokable hemp, Kentucky chose to stake out an official position that is not only wrongheaded from a policy standpoint but is also wrong in its legal analysis. How much longer can the Kentucky hemp industry bear the burden of these misguided official positions before succumbing to their weight? I sincerely hope Kentucky revises its views and embraces the realities of hemp and of the hemp industry. 

Here is the KDA’s legal opinion on D8 THC:

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April 19, 2021

Rod Kight is an international hemp lawyer. He represents businesses throughout the hemp industry. Additionally, Rod speaks at hemp and cannabis conferences, drafts and presents legislation to foreign governments, is regularly quoted on hemp and cannabis matters in the media, and is the editor of the Kight on Cannabis legal blog, which discusses legal issues affecting the hemp and cannabis industry. You can contact him by clicking here.