The Fate of D8 in the Palmetto State: South Carolina AG Addresses Delta 8 THC

The SC Attorney General issued an opinion on delta-8 THC.

On October 4, the South Carolina Attorney General’s Office (AG) issued an unfavorable opinion (Opinion) regarding the legal status of delta-8 THC and other isomers. A copy of the Opinion is included below. This Opinion was requested by the South Carolina Law Enforcement Division (SLED). In its request for the Opinion, SLED stated it believes:

that any and all THC that is not “a delta-9 THC concentration of not more than 0.3 percent on a dry weight basis” is specifically prohibited by the clear and unambiguous language of South Carolina Code Annotated § 44-53-190(D)(18). To that end, SLED is informed and believes that this unambiguous language would clearly criminalize the possession, possession with intent to distribute, or distribution of any and all amounts of delta-8 THC, or any other variant of THC, found in South Carolina.

SLED further contends that the SC Hemp Farming Act (Act) does not apply to delta-8 THC, or any other THC variant in any way whatsoever, because delta-8 THC does not meet the “federally defined THC level for hemp”, regardless of the fact that the federally defined THC level for hemp specifically and unambiguously references delta-9 THC, not delta-8. Unfortunately, this contorted take on the Act was the primary hook on which the AG hung its legal hat in issuing the Opinion.

The AG begins its analysis by describing South Carolina’s list of controlled substances, which includes THC. The definition does not distinguish between different types of THC, nor whether the THC was extracted or synthetically created. The AG continues by pointing out the fact that South Carolina’s controlled substances language does not distinguish between various isomers of THC, except to provide that “[a]ny … isomers” are included. The AG then references a 1978 court case from Georgia that defines delta-8 THC as an isomer.

Under South Carolina law all isomers of THC are Schedule I controlled substances, “unless specifically excepted.” In the Opinion, the AG asserts that under South Carolina law the legal status of hemp, which is an exception to the controlled substances act, hinges on the “federally defined THC level for hemp”, meaning “a delta-9 THC concentration of not more than 0.3 percent on a dry weight basis.” The Act does not address delta-8 THC or any other isomer aside from delta-9.

In a previously issued opinion to SLED in 2019, the AG reasoned: “anything exceeding the 0.3% concentration of THC, as defined [by the Hemp Farming Act], transforms industrial hemp into a controlled substance (marijuana) under federal and state law.” That opinion went on to conclude that the “possession or sale of material containing more than delta-9 THC concentration of more than 0.3 percent using post-decarboxylation or similarly reliable methods would likely be deemed to constitute marijuana.” The AG concluded by stating “if material contains more than delta-9 concentration of not more than 0.3 percent, based on the relevant circumstances, possession or retail sale would be ‘punishable by all currently existing South Carolina state and federal laws prohibiting possession, distribution, possession with intent to distribute and trafficking marijuana.

The 2019 opinion also mentioned the fact that “[a]ny determination as to whether there has been a violation… would have to be determined on a case-by-case basis”, and that “we must defer to law enforcement in this regard.

The AG mentions its receipt and review of memoranda prepared by a representative of the hemp industry which argues that delta-8 and other isomers of THC are legal. As it turns out, that “representative” included our law firm and a prominent SC attorney who chose to remain anonymous for this blog. Our memorandum, posted below, takes the position that delta-8 and other isomers of THC are lawful. This argument, which is fleshed out in detail in a memorandum you can read by clicking here, essentially reiterates and discusses the definition on “hemp” in the federal 2018 Farm Bill, which includes “all derivatives, extracts, cannabinoids [and] isomers” with “a delta-9 THC concentration of not more than 0.3 percent on a dry weight basis.” The federal definition of hemp, which has been completely removed from the Controlled Substances Act, includes all cannabinoids with the specific exception of delta-9 THC in concentrations exceeding 0.3%. For this reason, it is difficult to understand why delta-8 THC, which is similar to, but not the same as, delta-9 THC, should not be included within the “all cannabinoids” definition of hemp. In other words, the federal definition carved out and limited delta-9 THC. All other cannabinoids, including THC isomers other than delta-9, are included within the “federal definition of hemp”. If this was not the case then why was Congress so specific about limiting delta-9 THC, when it easily could have broadly limited all THC isomers by using the more inclusive and comprehensive term “tetrahydrocannabinols”?

Importantly, the AG agrees that these arguments could be made in good faith by a member of the hemp industry, though it does not agree with the conclusions.

The AG continues its Opinion by stating it believes a court would hold that the Act does not provide an exception for, and does not legalize, delta-8 THC or any other isomer of THC in itself. It goes on to flip logic on its head, and conveniently ignores the “all cannabinoids” language discussed above, by asserting that delta-8 THC is a controlled substance since the only exceptions found in the Act involve “a delta-9 concentration of not more than 0.3 percent on a dry weight basis.

The AG concludes with the following: “our Office agrees with SLED’s essential analysis that the Hemp Farming Act did not legalize THC except as defined in lawful hemp.” Finally, it reiterates its position that “any determination as to whether there has been a violation of the Hemp Farming Act or other criminal laws is a factual question which the AG’s Office cannot answer in an opinion, and that it would “defer to law enforcement and the local prosecutor’s office to make such determinations on a case-by-case basis.

While not having the force of law, the South Carolina AG’s Office essentially gave SLED what it wanted, namely, a document and legal position to point to when it inevitably begins prosecutions regarding delta-8 products. For this reason, the purchase, possession, and sale of delta-8 products in South Carolina currently appears to bear significant risk.

Despite our strong disagreement with the AG’s analysis, we think it is important to note that the AG engaged with us and solicited our analysis on this important issue. As the AG himself indicated, good faith arguments can be made by the hemp industry and we sincerely appreciate that the AG took time to consider our position. Unfortunately, this engagement by a state agency on this issue, and other novel issues regarding hemp, has more often been the exception than the norm.

The lawyers at Kight Law are not licensed in South Carolina. The views expressed in this article are editorial in nature and should not be construed as legal advice regarding any aspect of South Carolina law.

Here is the AG’s Opinion on D8:

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Here is the legal position statement we submitted to the SC AG at his request regarding D8:

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October 8, 2021

KIGHT LAW ATTORNEY PHILIP SNOW IS EXPERIENCED IN ADVISING BUSINESSES ABOUT HEMP, delta-8 THC, and CBD. 

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

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