Is Delta 8 THC Federally Legal?

This document does not offer legal advice and should not be taken as such. For legal inquiries or clarification, consultation with a legal expert is advised

Delta-8 THC and Federal Law:

A Comprehensive Insight Are hemp-derived cannabinoids and compounds, including Δ8THC, with delta-9 tetrahydrocannabinol (Δ9THC) concentrations that do not exceed three tenths of one percent (0.3%) on a dry weight basis controlled substances under United States (US) federal law? The answer to this question, based on the following analysis, is “no”.

The analysis provided herein is grounded in the Agricultural Act of 2014, the federal Controlled Substances Act (CSA), the federal Analogue Act (AA), and the recently published Interim Final Rule (IFR). The focus of this discussion is to determine the legal standing of Δ8THC and other hemp-derived cannabinoids under the CSA. This review does not delve into specific state laws or requirements under the Food, Drug & Cosmetic Act (FDAC) and associated regulations by the Food and Drug Administration (FDA) or any other federal agency.

EXECUTIVE SUMMARY:

  • Δ8THC as a Hemp-Derived Cannabinoid: Δ8THC, part of the tetrahydrocannabinol (THC) family, is often derived from the cannabis plant, including hemp as per the 2018 Farm Bill. It’s an isomer of Δ9THC. An isomer has the same number of atoms of identical elements but with varying structural arrangement. Notably, Δ8THC differs from Δ9THC based on the placement of a double bond in its molecular structure.

  • Federal Legal Status of Δ8THC Extracted from Hemp: While Δ8THC and Δ9THC are structurally similar, the distinction is vital in terms of their legal standing and bodily effects. The 2018 Farm Bill legalized hemp and all its derivatives, including cannabinoids that do not contain Δ9THC concentrations exceeding 0.3% on a dry weight basis. Therefore, Δ8THC from hemp is not considered a controlled substance under federal regulations.

    Δ8THC Derived from CBD: There is ambiguity concerning the legal standing of Δ8THC produced from cannabidiol (CBD) extracted from hemp. The process used to derive Δ8THC from CBD has raised questions about its classification as “synthetic.”

    No clear definition for “synthetic” THC exists in US law. However, regardless of its classification, Δ8THC derived from hemp does not qualify as a controlled substance since the 2018 Farm Bill includes hemp “derivatives” in its definition. In instances where two federal laws seemingly conflict, the more recent and specific legislation typically takes precedence. Here, the 2018 Farm Bill, which is more recent and specific than the CSA, makes clear that hemp-derived Δ8THC is lawful under federal regulations.

    Implications of the Federal Analogue Act on Δ8THC: The federal Analogue Act (AA) suggests that any chemical with properties “substantially similar” to a controlled substance listed in Schedule I or II of the CSA might be treated as a Schedule I substance. However, the CSA expressly clarifies that “tetrahydrocannabinols in hemp” are not controlled substances. Given this, hemp-derived Δ8THC does not qualify as a controlled substance under the AA.

    Advocacy for Safe

    Δ8THC Products: While Δ8THC appears to be safe, concerns about the quality and safety of Δ8THC products containing adulterants or toxins persist. Advocating for the safe production and consumption of Δ8THC products is essential. Unregulated and harmful manufacturing processes might pose risks to consumers and the industry at large. Conclusion

    Hemp-derived Δ8THC, including when derived from CBD, is not a controlled substance under federal law, as clarified by the 2018 Farm Bill. However, as Δ8THC becomes more popular in consumer markets, clear regulations and guidance are required to ensure its safe production and consumption.

    The general consensus is that restrictions on hemp compounds, including Δ8THC, are counterproductive. Instead, safe production and consumption of all hemp products should be encouraged and promoted.