Delta 8 THC: Legal or Not?
[Author’s note: Since this article was published, I have published another article, “Is delta-8 THC ‘Synthetic’? Does it Matter?“, which delves more deeply into some of the issues presented here. I recommend reading it in conjunction with this article, which you can do by clicking here. -Rod Kight, May 6, 2021]
We have been getting lots of calls recently about delta-8 tetrahydrocannabinol (Δ8THC). As I recently discussed in an article entitled “Cannabinoid Contenders- Which Will Be the Next CBD?“, which you can read by clicking here, Δ8THC is a “minor” cannabinoid poised to make a major impact on the hemp industry.
It is clear that Δ8THC derived from marijuana is illegal at the federal level. This is because the Controlled Substances Act (CSA) defines “marihuana” broadly to include “all parts of the plant Cannabis sativa L., whether growing or not…” (21 USC § 802(16)(A)) For this reason, all derivatives of marijuana are controlled substances, including otherwise lawful substances like chlorophyl. The issue addressed in this article is whether Δ8THC derived from hemp is lawful.
At this point I should note that nothing in this article should be construed as legal advice. As I discuss at the end, “Disclaimer and Important Considerations”, this article articulates a legal theory which has yet to be addressed by any court. If you are considering producing or marketing Δ8THC, you should first consult with an attorney.
THIS ARTICLE DOES NOT CONSTITUTE LEGAL ADVICE AND SHOULD NOT BE USED AS A SUBSTITUTE FOR A CONSULTATION WITH A COMPETENT ATTORNEY. NO ATTORNEY-CLIENT RELATIONSHIP IS CREATED BY VIRTUE OF READING THIS ARTICLE, WHICH IS WRITTEN SOLELY TO DESCRIBE A NOVEL LEGAL THEORY.
INTRODUCTION
Δ8THC is a cannabinoid of the tetrahydrocannabinol “family” of compounds commonly derived from the cannabis plant. It is a double bond isomer of Δ9THC, a more well-known cannabinoid in the tetrahydrocannabinol family that is also produced by the cannabis plant. An isomer is a type of chemical analog. Specifically, an isomer is one of two or more compounds that contain the same number of atoms of the same elements but differ in structural arrangement and properties. There are thirty (30) known THC isomers. Δ8THC and Δ9THC differ with respect to the location of a single double bond. Click here to read my recent article about THC analogs.
Despite their similarities, the structural difference between Δ8THC and Δ9THC makes a substantial difference in how they each affect our bodies. This difference also impacts their legal status.
Δ8THC FROM HEMP IS NOT A CONTROLLED SUBSTANCE
The 2018 Farm Bill defines lawful “hemp” (7 U.S.C. § 1639o(1)) and distinguishes it from illegal marijuana. Hemp is not a controlled substance under the CSA. (21 USC § 802(16)(B): “The term “marihuana” does not include— (i) hemp, as defined in section 1639o of title 7.”) Importantly, under the Farm Bill, hemp-derived “cannabinoids”, “derivatives”, “extracts”, and “isomers” are themselves “hemp” and thus not controlled substances. In other words, from a legal standpoint they are all “hemp” as defined in the Farm Bill. Δ8THC is a “cannabinoid” and is not a controlled substance when derived from hemp, regardless of its concentration.
Δ8THC DERIVED FROM CBD IS NOT A CONTROLLED SUBSTANCE
Although it is clear that Δ8THC which is naturally expressed in the hemp plant is not a controlled substance, producing and marketing it currently presents a unique legal issue: what is the legal status of Δ8THC that is derived from cannabidiol (CBD) or some other hemp-derived cannabinoid? This issue is important because most Δ8THC on the market is a derivative of CBD. Current hemp cultivars do not express Δ8THC in sufficient concentrations or quantities to be economically viable to extract it for commercial purposes. However, converting CBD into Δ8THC can be profitable under the right circumstances. (Note: For purposes of this article all references to “CBD” are to CBD derived from hemp.) CBD is cheap and abundant, and most methods of converting it to Δ8THC are not cost-prohibitive. Additionally, the demand for Δ8THC appears to be rising dramatically relative to its current supply.
In order to answer the question of whether Δ8THC derived from CBD is lawful, we must determine whether this form of Δ8THC meets the definition of a hemp derivative under the Farm Bill. This is a two-part issue. First, as discussed above, the Farm Bill’s definition of “hemp” includes all of its cannabinoids. This necessarily includes CBD. In other words, a hemp plant and CBD derived from a hemp plant are both “hemp” under the Farm Bill. The statute does not distinguish between a hemp plant and its cannabinoids, extracts, derivatives, etcetera. From a legal standpoint, all of these things are “hemp”. A derivative of CBD is by definition a derivative of “hemp” and thus not a controlled substance. This brings us to our second issue, whether Δ8THC produced from CBD is a “derivative” of CBD. For the reasons discussed below, the answer is “yes”.
The Chemicool Dictionary defines a derivative as “a compound that can be imagined to arise or actually be synthesized from a parent compound by replacement of one atom with another atom or group of atoms.” Wikipedia defines a chemical derivative as “a compound that is derived from a similar compound by a chemical reaction.”
All of the standard operating procedures (SOPs) I have reviewed for converting CBD to Δ8THC describe a chemical reaction initiated by a catalyst in which the CBD is converted to Δ8THC and other minor cannabinoids and compounds. In fact, the US government holds a patent for converting CBD to Δ8THC. (“Conversion of cbd to delta8-thc and delta9-thc”, US Patent No. US20040143126A1.) Additionally, Δ8THC does not degrade, oxidize, or otherwise convert to Δ9THC by the mere application of heat.
Based on the most commonly used processes for producing Δ8THC from CBD, including the US government patented SOP, Δ8THC “arises from a parent compound” (i.e., CBD) through a true “chemical reaction” (i.e., not just a heat-induced transformation or degradation). For this reason, Δ8THC meets the definition of a “derivative” of CBD under the above definitions.
Since the statutory definition of “hemp” includes “cannabinoids” such as CBD, and “derivatives” of hemp have been removed from the CSA, Δ8THC derived from CBD falls within the statutory definition of “hemp” and is not a controlled substance. This conclusion follows the general rule, adopted in the Farm Bill, that the source of a cannabinoid determines its legal status. When a cannabinoid is derived from marijuana it is a controlled substance; however, when it is derived from hemp it is not a controlled substance. This is known as the “Source Rule”, which I developed several years ago. (For more reading on the Source Rule, both on my blog and in other media, click here, here, and here. Additionally, my friend and colleague Bob Hoban recently discussed the Source Rule in a well-written Forbes article that you can read by clicking here.)
Δ8THC FROM HEMP IS NOT A CONTROLLED SUBSTANCE UNDER THE FEDERAL ANALOGUE ACT
When discussing Δ8THC I am often asked, “What about the Analogue Act?” My response is that Δ8THC from hemp is not a controlled substance under the federal Analogue Act (AA). (21 USC § 813) The AA provides for any chemical that is “substantially similar” to a controlled substance listed in Schedule I or II of the CSA, and which has a “stimulant, depressant, or hallucinogenic effect on the central nervous system (CNS) that is substantially similar to or greater than” the controlled substance, to be treated as if it were listed in Schedule I when intended for human consumption. There are several reasons that hemp-derived Δ8THC is not a controlled substance under the AA.
First, the CSA expressly provides that “tetrahydrocannabinols in hemp” are not controlled substances. (21 USC § 812(c)(17)) This specificity in the CSA as to THC in hemp overrides any contrary general provisions in the AA. Second, the effect that Δ8THC has on the CNS is not substantially similar to the effects of Δ9THC, a Schedule I controlled substance. Its effects are much less potent. (See, eg, “Delta‐8‐ and delta‐9‐tetrahydrocannabinol; Comparison in man by oral and intravenous administration”, by Leo E. Hollister M.D. and H. K. Gillespie B.A., Volume 14, Issue 3 of Clinical Pharmacology and Therapeutics, 1973, which found that the potency of Δ8THC relative to Δ9THC is two-thirds (2/3).) Third, hemp has been removed from the CSA. As discussed above, hemp-derived Δ8THC meets the legal definition of “hemp” under the Farm Bill. Legally speaking, it is hemp and is not a controlled substance. For these reasons, Δ8THC from hemp is not a controlled substance under the AA.
CONCLUSION
The cannabinoid Δ8THC is not a controlled substance under the federal CSA when it is derived from hemp. Additionally, I contend that Δ8THC is not a controlled substance when derived from hemp-derived CBD. This is because the 2018 Farm Bill’s definition of “hemp” includes “cannabinoids” and “derivatives” of hemp. This necessarily includes CBD and its derivatives, such as Δ8THC, provided that they do not contain Δ9THC concentrations that exceed the legal limit of 0.3% by dry weight. (Click here to read more about issues raised by the 0.3% “dry weight” standard.) Finally, hemp-derived Δ8THC is not a controlled substance under the federal AA because tetrahydrocannabinols in hemp are not controlled substances, Δ8THC does not have an effect on the CNS that is substantially similar to a controlled substance, and hemp-derived Δ8THC meets the definition of “hemp” under the Farm Bill. The 2018 Farm Bill removed hemp from the CSA. Under the Farm Bill, cannabinoids and derivatives of hemp are themselves “hemp”.
DISCLAIMER AND IMPORTANT CONSIDERATIONS
It is important to note that, while Δ8THC has been known and studied in a scientific context for several decades, it is new to the consumer market. I am unaware of any court cases that have considered the legal status of Δ8THC. As of this date, the legal arguments and positions presented in this article have not been tested in any court of law and it is not known whether a court would adopt them. Neither I nor any other lawyer can guarantee that the legal theory about Δ8THC presented in this article, or any other legal position regarding Δ8THC, would be accepted by a court, nor can I or any other lawyer guarantee any specific outcome regarding a legal matter involving Δ8THC.
For this reason, there currently exists substantial uncertainty and risk, including the risk of criminal prosecution, associated with manufacturing, possessing, selling, and/or using Δ8THC. I sincerely hope that this will change. In fact, one of my motivations in publishing this article is to educate people, including lawyers, regulators, and law enforcement agents, about hemp derived Δ8THC. In the meantime, deciding whether to produce, market, or even possess Δ8THC is something to do only after careful consideration and consultation with an attorney. At a minimum, such a consultation should address the arguments presented in this article and other relevant legal positions, include a thorough risk-assessment that takes into account any pertinent state laws, and a discussion of how Δ8THC should be marketed and sold given its intoxicating effects. Finally, this article only addresses the legal status of hemp derived Δ8THC under the federal CSA. It does not take into consideration the Food, Drug & Cosmetic Act, other federal laws and regulations, nor does it address any state laws or regulations, all of which should be considered.
The lawyers at Kight Law are well-versed in the legal and practical issues raised by producing and marketing Δ8THC. You can contact us to schedule a consultation by clicking here.
July 9, 2020
Rod Kight is an international hemp lawyer. He represents businesses throughout the hemp industry. Additionally, Rod speaks at cannabis conferences, drafts and presents cannabis legislation to foreign governments, is regularly quoted on cannabis matters in the media, and is the editor of the Kight on Cannabis legal blog, which discusses legal issues affecting the cannabis industry. You can contact him by clicking here.
Helpful analysis, Rod, as always. Thanks.
Thank you for this it was very knowledgeable! I just started selling delta eight cartridges and it seems every distributor in my part of Florida has it and pushing it. I’m willing to take the risk since everything I’ve research leads me to believe this is technically just like Full Spectrum CBD, part of the hemp plant and therefore it’s 100% legal. I sampled it for the first time this week and it’s definitely just enough to soothe and not overbearing… just right!
Rod,
The issue is that the law can be changed and updated. Your legal point is correct today and I believe you argument regarding D8 not being an Analogue is correct as well. That being said, I can certainly see changes in Congress that could reclassify the D8 as well as other compounds that have a psychedelic effect being removed. I believe the only answer to getting through this cat and mouse games between DEA, Congress, State laws, FDA, USDA and a bunch of other 3 letter organizations, will be removing THC / Marijuana off of any CSA schedule and make it similar to Alcoholic beverages which clearly has been shown to be a higher gateway drug and far more damaging to your health and to others. It doesn’t matter if the THC limit on a dry weight is increased to 2, 3 or 5%. It will always be open to interpretation every step of the way. The USDA is having its field day on CBD Hemp Growers and now we see the DEA trying to block the extraction process as a means to block innovation. They want to put the hemp genie back in the marijuana bottle. I am at the point that unless we have a new Federal Law to remove marijuana as a controlled substance period, not a Schedule 2, 3, 4 or 5, just removed. Do I think it will happen under a Trump Administration, no. Do I think it will happen under a Biden Administration, hell no. We are looking at least another 4 or 5 years before this will happen at the soonest.
As an example, NY State Agriculture and Markets decided to no longer consider regulating Hemp Growers in the. NYS. NYS wants a successful hemp industry and said it cannot abide to the USDA policies regarding Hemp farmers and therefore, will not apply to regulate it. There are 500 CBD Hemp Farmers in NYS with over 20k acres of cultivation who have operated under the 2014 research license and now will be forced to deal with the USDA to obtain new licenses. The USDA, DEA and FDA are undermining the laws of America and are destroying the CBD Hemp industry before it can even start.
Rod,
The issue is that the law can be changed and updated. Your legal point is correct today and I believe you argument regarding D8 not being an Analogue is correct as well. That being said, I can certainly see changes in Congress that could reclassify the D8 as well as other compounds that have a psychedelic effect being removed. They want to put the hemp genie back in the marijuana bottle. I am at the point that unless we have a new Federal Law to remove marijuana as a controlled substance period, not a Schedule 2, 3, 4 or 5, just removed. Do I think it will happen under a Trump Administration, no. Do I think it will happen under a Biden Administration, hell no. We are looking at least another 4 or 5 years before this will happen at the soonest.
I have never heard you write about 3Chi Delta THC.
I had to find out about this from someone else.
Thank’s, It’s a great thing that this article suggested the importance.
as for the analog act, this all seems like wishful thinking. Simply because a substance is less potent does not mean it isn’t substantially similar. If an new substance were 1/3 less potent than LSD, one would only need to consume 3x more to get a similar dose; nowhere in the analog act does it specify similarity in quantitative terms like this, rather, the analog act is highly qualitative, and this is precisely why in US v Forbes the US District Court of Colorado ruled that in the case of AET as an analog of AMT was unconstitutionally vague.
The argument that it’s not an analog of THC because hemp-derived cannabinoids are excluded from the CSA likewise doesn’t hold water at all. I’m not even at all sure where this is coming from and reminds me of the myth that MXE isn’t a controlled substance analog because it’s abs analog of Ketamine, a schedule iv substance. That’s true, but it’s also an analog of PCE, which is a schedule i substance.
While hemp-derived Delta 8 is an analog of trace delta 9 thc found in hemp, it is still also an analog of delta 9 thc found in recreational and medicinal marijuana. It seems crazy to think you could argue somehow that hemp-derived delta 9 lacks substantial structural and pharmacological similarity to marijuana-derived delta 9, and that is the help derived delta 9, not the marijuana derived delta 9 that the product is intended to emulate – being that they are the *exact same molecule*
I’m not saying delta 8 should be banned, not in the least – nor any other cannibinoid. But wishful thinking isn’t going to change the fact that the analog act is purposely broad – arguably unconstitutionally broad – and that somehow we can just will away the very reality that delta 8 and friends aren’t somehow analogs of delta 9. They are. In the legal, pharmacological and chemical sense they are, and the only reason they’re not treated as such is because it would be politically hazardous to do so.
But mark my words. People are going to get prosecuted under the analog act. Maybe not individual consumers, but producers most certainly will.
Thanks for reading and commenting on my blog. If you haven’t already done so, I recommend reading a more updated and comprehensive analysis of this issue that we prepared for the Hemp Industries Association (HIA), which you can do by clicking here.
With respect to the Analog Act, it simply does not apply and is the biggest and most consistent “red herring” I’ve heard regarding this issue. Aside from the fact that D8 does not have a substantially similar effect on the central nervous system as delta-9, the most important fact is that Congress specifically removed hemp from the Controlled Substances Act (CSA). The legal definition of “hemp” extends well beyond the plant itself to all of its parts, including its “derivatives”, “extracts”, “cannabinoids”, “isomers”, etcetera that do not contain ∆9THC concentrations that exceed 0.3% on a dry weight basis. All of these hemp compounds have been expressly removed from the CSA. Additionally, the 2018 Farm Bill expressly removed THC in hemp from the CSA. In other words, the 2018 Farm Bill, which is both more specific and recent than the Analog Act, controls regarding hemp cannabinoids. It would be meaningless for Congress to enact a law expressly removing certain compounds from the CSA (in this case, all hemp compounds except for D9 in concentrations exceeding 0.3%) only to have those same compounds be immediately “captured” and deemed controlled substances under an older, more general law. It’s just straightforward statutory construction.
Where in the CSA does it at all expressly specify that cannabinoids derived from hemp are excluded under the act? It appears to expressly ban “Tetrahydrocannabinols” in their entirety and makes no mention of the word “hemp” at all. Moreover, I am not seeing how the 2018 Farm Bill effectively separates Tetrahydrocannabinols derived from hemp from Tetrahydrocannabinols derived from marijuana under the CSA regulation? Isn’t it more fair to say that Delta 9 in itself is a controlled substance but is exempted when the product is below 0.3%?
Thanks for reading and commenting. I recommend that you read the legal position statement on hemp derived delta-8THC, which addresses the issues in this blog post in more depth. You can read it by clicking here. The only cannabinoid that is listed as a controlled substance in the CSA is THC. All other cannabinoids are lawful (by which I mean that they are not controlled substances) except when they are from marijuana. This is because the legal definition of “marijuana” includes “all parts” of the plant. For this reason, and technically speaking, chlorophyll from a marijuana plant is a schedule I controlled substance. With respect to THC, the 2018 Farm Bill expressly changed the CSA in two important ways. First, it specified that “hemp” is not a controlled substance. The Farm Bill’s definition of “hemp” is expansive, and includes “all parts” of the plant, including cannabinoids, extracts, derivatives, isomers, etc. with a delta-9 THC concentration that does not exceed 0.3% on a dry-weight basis. Second, the CSA was modified such that “THC in hemp” is not a controlled substance. Finally, regarding your comment, “Isn’t it more fair to say that Delta 9 in itself is a controlled substance but is exempted when the product is below 0.3%?” I do not necessarily agree. I refer you to pending litigation with the DEA over the legal status of hemp extracts with THC, which you can learn more about by clicking here. -Rod