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.
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.
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.