Delta-8 THC and State Law

One of the best parts about my job as a cannabis attorney is responding to the questions I am asked on a regular basis. Clients, potential clients, family members, and even people “asking for a friend” never cease to amaze me with their curiosities about the cannabis industry. And, despite 2020 being one of the most unpredictable years on record, I can safely assume that people will ask me about Delta-8 THC (∆8) the rest of this year and well into 2021.

For the uninitiated, ∆8 is one of many cannabinoids found in the cannabis plant. Although ∆8 is a minor cannabinoid, it has been making major splash in the cannabis industry this year. You can read more about ∆8 itself, including a detailed discussion of its legal status under federal law, by clicking here.

The popularity of ∆8 has increased so dramatically during 2020 that we routinely field up to twenty calls per week regarding whether it is legal and if there are any specific pieces of information that manufacturers, distributors, and/or retailers should to know before they make the decision to manufacture, distribute, or sell ∆8 products.

There are many challenges with advising clients or potential clients about ∆8, one of which is the fact that many states across the country regulate hemp, hemp-derived CBD, and ∆8 differently. As a result, there is no “one-size-fits all” answer to whether ∆8 products can be manufactured, distributed, or sold within a given state.

For example, many states across the country have revised their definition of hemp to be in line with the 2018 Farm Bill, which 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). 7 U.S.C. § 1639o(1)

Based on this definition of hemp, hemp-derived derivatives, extracts, cannabinoids, and isomers are included within the definition of lawful hemp. Because ∆8 is a cannabinoid that is derived from hemp, the analysis under states with this definition of hemp is that ∆8 is lawful.

However, some states have different definitions of hemp that have not been updated to reflect the language of the 2018 Farm Bill (expressly leaving out extracts, derivatives, cannabinoids, and isomers). The absence of these words from the definition of hemp implicates the legality of ∆8, making it questionable at best to manufacture, distribute, or sell ∆8 products in those states. 

Additionally, some states have failed to make the distinction between tetrahydrocannabinols (THC) found in hemp versus those that are found in marijuana. Moreover, other states classify THC as a “hallucinogenic substance,” and include it on their controlled substances lists.

For this reason, it is crucially important to stay on top of the rapidly evolving regulations regarding ∆8 and your ability to manufacture, distribute, and retail products that contain it.

The lawyers at Kight Law are well-versed in the legal and practical issues raised by producing and marketing Δ8THC. We have created a state by state matrix and summary regarding delta-8 THC. You can contact us to schedule a consultation by clicking here.

Disclaimer: The legal positions expressed in this article are not intended to be, and should not be construed as, legal advice. The issues presented and legal theories asserted are novel. You should consult with an attorney before taking any action regarding these matters.

December 22, 2020

This article was written by Kight Law attorney Philip Snow. Kight Law represents hemp and CBD businesses in the US and throughout the world. To schedule a consultation with Philip, please click here and mention this article.