Is Delta-8 THC Legal?

As the cannabis industry has matured, it has become much more than a legal marketplace for cannabinoids like the euphoria-inducing THC and its nonintoxicating counterpart, CBD, known for its many therapeutic benefits. Cannabis consumers have recently been introduced to cannabinoids like CBN (cannabinol) and CBG (cannabigerol), and now, Delta-8 THC, especially popular among consumers where cannabis remains illegal.

What is it?

In its natural form, Delta-8 is a degraded form of Delta-9 THC that can be made by storing Delta-9 for a long period of time, then putting it through an extraction and refinement process. In its synthetic form, Delta-8 is made by using the nonintoxicating CBD molecule from legal hemp plants then converting it into Delta-8 THC by mixing a solvent with acid and heat in a process called isomerization.

Is it legal?

Good question, and one with a multi-part answer. If you live in a state where cannabis is legal, and you purchase Delta-8 from a licensed dispensary, then yes, the product is legal. But only sometimes.

It’s when you live outside of a legal state that it gets tricky for a few reasons. As mentioned earlier, Delta-8 occurs naturally when left to oxidize over time, but this is not practical or efficient for businesses. Instead, they speed the process along by taking CBD and making it into something new – a synthetic cannabinoid.

Hemp – by its definition within the 2018 Farm Bill that made it legal – is nonintoxicating. The DEA stands firm that synthetic tetrahydrocannabinols like Delta-8 are illegal, and many states are codifying this same thought, including not-so canna-friendly states like Utah, Iowa, and others. However, even legal states like Colorado, Alaska and Washington are saying that the manufacture and sales of Delta-8 within their borders are illegal.

What’s the current situation?

Evolving, is the very short answer, but there are a few things to keep in mind. In 1986, a law called the Federal Analogue Act was passed to combat synthetically-made “designer drugs.” The law states that any drugs that are similar in chemical structure and have an actual or intended effect similar to or greater than that of a controlled substance (cannabis and its cannabinoid Delta-9 THC remain federally illegal despite some state legality) and are intended for human consumption must be treated as a Schedule I or Schedule II controlled substance.

Whereas CBD derived by hemp is legal as long as it remains below 0.3 percent THC, to change it into something else like Delta-8 – as many firms are doing, seems to be at the very least against the spirit of the Farm Bill and at the most creating a new illegal drug.

Additionally, some in the legal hemp space are bemoaning the Delta-8 craze, saying that the novel cannabinoid has the potential to destroy years of effort to convince lawmakers and others that hemp is a versatile plant that could be applied to a range of industries like textiles, retailers, construction materials, manufacturers, and others. The Farm Bill specifically separated hemp from its intoxicating cousin marijuana. Delta-8 blurs that line.

How and where can I purchase DELTA-8?

It’s important to remember that Delta-8 is new to both consumers and cannabis firms, so research on its effects are sparse. Anecdotally, consumers are reporting a milder high than Delta-9 and may soothe pain, reduce nausea, and stimulate the appetite.

If you do decide to purchase Delta-8, only buy it from a licensed, legal dispensary. Make sure that the product has been tested for cannabinoids, toxins, contaminants, and impurities, and that the Certificate of Analysis is readily available and easily viewed.

For those who do not have access to legal cannabis, you may be able to purchase it online from a cannabis firm in a legal cannabis state. Pro tip: do not buy Delta-8 from an outlet like Amazon or nontraditional outlets like gas stations, smoke shops, or bodegas. At this point, many firms not necessarily on the up and up are looking to cash in on the craze, and the purity of those products cannot be guaranteed.

Is there a DELTA-8 drug test?

No, but there isn’t a Delta-9 drug test, either. Drug panels don’t look for cannabinoids, but are designed to seek out cannabis metabolites stored in fat cells called THC-COOH. If you have consumed Delta-8 and have to undergo a drug test, you’re probably better off to play it safe by not consuming the cannabinoid before the panel.

Can I drive if I consume DELTA-8?

From what we know now, Delta-8 is designed to be an intoxicant with effects similar to those of Delta-9 but reportedly to lesser effect. It’s never a good idea to get behind the wheel after consuming an intoxicant, and the same goes for Delta-8.

Will the government ban DELTA-8 products?

Given what has been reported on the banning of its sale even in legal cannabis states, it appears as if many local governments are already moving toward banning the substance. The language of the 2018 Farm Bill does leave some ambiguity about how to regulate hemp and its subsequent cannabinoids, so it really is up to Congress to decide whether the substance should be banned federally. Since they have yet to legalize – or even decriminalize – cannabis, it seems safe to assume that Delta-8’s time in the legal(ish) cannabis industry will be short lived.