Is Delta 8 THC Legal?
THE LAWS AROUND DELTA 8 THC: A STATE-BY-STATE GUIDE TO LEGALITY
As a result of the 2018 Farm Bill, hemp and hemp products (with less than .3% Delta-9-tetrahydrocannabinol a/k/a Delta-9 THC) are considered federally legal, as opposed to any other products with Delta-9 THC, which have been federally banned in the United States for more than a century. Through a relatively simple chemical process known as isomerization, manufacturers have recently discovered that they can obtain Delta-8-tetrahydrocannabinol (Delta-8 THC) from CBD in a plentiful, safe, and inexpensive manner. Notably, the National Cancer Institute purports that D8 not only has neuroprotective properties but can also relieve anxiety, aid in pain management, stimulate appetite and decrease nausea.
The Drug Enforcement Administration (DEA) has released an interim final rule as an addendum to the Farm Bill, clarifying that the manufacture of synthetic tetrahydrocannabinol is considered illegal. The deciding factor on whether or not Delta-8 THC (D8) falls under this classification is how the DEA finally decides to define the term “synthetic manufacture” and if the isomerization of CBD meets that definition. As of now, it appears that the DEA has no intention of prosecuting any D8 cases.
Due to ease of production and the compound’s efficacy, there has been a widespread proliferation of affordable Delta-8 THC products in the US. Vape cartridges, edibles, flowers, distillate, and isolate products containing D8 can be found at almost any brick-and-mortar smoke shop or CBD distributor. Consequently, several states have already begun to institute bans on D8, despite an estimated $10 million in retail sales over the past year and little evidence of resulting negative consequences. Below, we have compiled a comprehensive, state-by-state list indicating D8’s current legal status, new legislation that may potentially affect that status, and insight we have about the future of D8 in each state, based on their past decisions regarding similar matters.
States that have banned D8
Alaska – Sec. 11.71.160.(f) Schedule IIIA. states “…any material, compound, mixture, or preparation that contains any quantity of the following substances or that contains any of its salts, isomers, whether optical, position, or geometric, or salts of isomers whenever the existence of those salts, isomers, or salts of isomers is possible within the specific chemical designation” is considered to be a Schedule IIIA substance and goes on to list tetrahydrocannabinols as one of such substances. Taking their recently relaxed stance towards marijuana into account, their ban on D8 is mildly surprising but most likely stems from similar motivations as those in other states that have legalized marijuana for adult-use, such as Colorado and Oregon, as discussed below. States that have legalized and regulated Delta 9 products desire the same for any other tetrahydrocannabinols that will be distributed on a retail level.
Arizona – Title 3 Agriculture. CH. 2, ART. 4.1 Industrial Hemp defines cannabis as marijuana, as well as “Every compound, manufacture, salt, derivative, mixture or preparation of such resin, tetrahydrocannabinol (T.H.C.), or of such plants from which the resin has not been extracted” in Section 3-311. In addition, Title 36 – Public Health and Safety, Ch.2 Section 36-2512 states that “any material, compound, mixture or preparation that contains any quantity of the following…substances and their salts, isomers and salts of isomers, unless specifically excepted or unless listed in another schedule, whenever the existence of these salts, isomers and salts of isomers is possible within the specific chemical designation (for the purposes of this paragraph, “isomer” includes the optical, position and geometric isomers):” and goes on to list cannabis, with the exception of the synthetic isomer of delta-9-tetrahydrocannabinol. This simply means that any tetrahydrocannabinol other than synthetic Delta 9 will be considered banned, including D8.
Arkansas – Under House Bill 1415, Section 1, Arkansas law states that any salts, isomers or salts of isomers of tetrahydrocannabinols are classified as a schedule VI substance. Interestingly, the bill goes on to specify a number of tetrahydrocannabinol isomers to be scheduled, detailing “synthetic substances, derivatives, or their isomers in the chemical structural classes described below in subdivisions…of this section and also specific unclassified substances in…this section. Compounds of the structures described in this subdivision…regardless of numerical designation of atomic positions, are included…The synthetic substances, derivatives, or their isomers included in this subdivision are:(A)(i) Tetrahydrocannabinols.”
Colorado – Colorado takes a similar approach to Arkansas by specifically defining what a tetrahydrocannabinol is in Section 25a of Title 18 Criminal Code Uniform Controlled Substances Act of 2013. “ ‘Tetrahydrocannabinols’ means synthetic equivalents of the substances contained in the plant, or in the resinous extractives of, cannabis, sp., or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity, such as the following: (I) ¹Cis or trans tetrahydrocannabinol, and their optical isomers; (II) 6Cis or trans tetrahydrocannabinol, and their optical isomers; (III) 3,4Cis or trans tetrahydrocannabinol, and their optical isomers.” Being that Colorado has legalized and regulated the sale of Delta-9 THC products for adult use, this ban is most likely motivated by the desire for established regulation of D8, similarly to Oregon and Alaska. In May 2021, Colorado’s Department of Public Health and Environment released a statement declaring that “chemically modifying or converting any naturally occurring cannabinoids from industrial hemp is non-compliant with the statutory definition of ‘industrial hemp product.” The statement goes on to specifically mention any process that modifies an existing cannabinoid and explicitly refers to D8.
Delaware – Under Title 16 of their Uniform Controlled Substances Act, stating that any products containing “any quantity of marijuana or any tetrahydrocannabinols, their salts, isomers or salts of isomers and is not approved for use by the US Food and Drug Administration” Delta-8 THC is not legal.
Kentucky – On March 25, 2021, the Governor of Kentucky approved and signed House Bill 307, declaring that marijuana “means all parts of the plant Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant,” effectively outlawing all isomers of THC, including Delta-8. Furthermore, on April 19, 2021, the Kentucky Department of Agriculture sent a guidance letter to hemp license holders reiterating their position on D8 and even purports that D8 is a schedule I controlled substance under federal law.
Idaho – Idaho’s House Bill 122, section 37-2701, bans all tetrahydrocannabinols, with the exception of those occurring with hemp under .3% concentration. It then goes on to specify that “synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis, and/or synthetic substances, derivatives, and their isomers with similar chemical structure such as the following” and goes on to list various tetrahydrocannabinols. Overall, Idaho’s cannabis laws tend to be quite stringent and this aspect is not too surprising.
Iowa – With no medical marijuana program existing in Iowa, it can be expected that their legislation surrounding isomers and salts of tetrahydrocannabinols is more restrictive. Except for cannabinoids specified by rules of the board with medical purposes, all tetrahydrocannabinols, salts, isomers and synthetic equivalents are banned.
Mississippi – Similarly to other states listed in this section, Mississippi has decided to consider all isomers, synthetic substances and derivatives of tetrahydrocannabinols illegal. The legislation provides an exception for synthetic cannabinoids medications dronabinol and nabilone. Interestingly, it also provides an exception for extracts, oil and resins with a 20:1 ratio of cannabidiol:tetrahydrocannabinol, as long as they have been diluted to a concentration of 2.5mg of tetrahydrocannabinols per milliliter. Presumably, the state of Mississippi finds that such a small amount of THC is negligible.
Montana – Title 50 of the Montana Code dictates that all salts and derivatives, isomers and synthetic substances replicating tetrahydrocannabinols are considered “specific dangerous drugs” in Schedule 1. The legislation goes on to specify all cis, trans and optical isomers of delta 1, 3, 4, 6, and 9 tetrahydracannabinol.
Rhode Island – In Section 3 of the “Uniform Controlled Substances Act,” Rhode Island defines “marijuana” as the plant itself, any resins extracted, as well as every compound, isomer, derivative and salt existing in the plant. According to this definition, D8 and all other tetrahydrocannabinols are considered controlled substances.
Vermont – In Mid-April 2021, Vermont’s Agency of Agriculture released a statement declaring the manufacture, possession and sale of D8 to be banned under state law. Despite D8 existing as a naturally occurring compound in the cannabis plant, the state’s cannabis control quality administrator, Stephanie Smith says that the reasoning behind the ban is due to it being “not naturally occurring.” By considering D8 a “synthetic cannabinoid,” the sale of D8 would violate the state’s law banning synthetic cannabinoids in hemp.
Utah – Chapter 37 of the Utah Controlled Substances Act specifies that tetrahydrocannabinols and their synthetic equivalents, derivatives and isomers are considered controlled substances, regardless of the numerical designation of atomic positions covered. Regardless, the legislation does specify Delta-1(9), Delta 6 and Delta 3,4.
STATES THAT HAVE INTRODUCED LEGISLATION BANNING D8
Alabama – In February 2021, state Rep. Mike Holmes introduced a bill banning an addictive, opioid-like antidepressant. After passing the House unanimously, an amendment banning Delta-10 THC and D8 was added to the bill. Subsequently, Alabama’s cannabis industry has expressed their discontentment with this veiled attempt to ban D8, citing that no deaths have been attributed to it and cannabis’ proven safety profile in comparison to some over-the-counter medications. The Senate Judiciary committee has approved the change, but the Senate and House have yet to vote on the changed bill.
North Dakota – Governor Burgum signed HB 1045 into law in April 2021, specifically banning D8, Delta-7 THC and Delta-10 THC. Despite its passage, the practicality of its enforcement is still being debated and it seems as though law enforcement has not yet decided how to approach and enforce this novel legislation.
Oregon – In March 2021, Oregon legislators released a statement indicating their intent to regulate D8 through the Oregon Liquor Control Commission, the same body that establishes and enforces regulations for the adult-use cannabis industry in Oregon. Considering this state’s embracement of cannabis legalization and reputation as a center for cultivation and extraction, it is a little surprising to hear that Oregon is considering banning D8. However, this legislation may be more reflective of a desire for comprehensive regulation and consumer protections to be instituted. If that is the case, then sensible regulation of D8, such as that which exists for Delta-9, is the proper path forward.
States that have indicated they are likely to pass legislation banning D8 in the near future
Georgia – Though Georgia does have a limited medical marijuana program, their banning of synthetic cannabinoids in May 2010 indicates an attitude toward synthetic equivalents of tetrahydrocannabinols that may lead them to introduce legislation banning isomers and derivatives of tetrahydrocannabinols.
Louisiana – With relatively stringent medical marijuana regulations, including no smokable flower and a limited list of qualifying conditions, and a ban on synthetic cannabinoids since August 2010, it is likely that Louisiana will attempt to introduce legislation banning D8 in the near future.
Indiana – Considering Indiana’s complete lack of a medical marijuana program, it is a likely candidate for creating legislation aimed at banning the manufacture and distribution of D8.
Kansas – Synthetic cannabinoids have been banned in Kansas as of March 2010, making it one of the first states to introduce legislation that outlawed synthetic cannabinoids. Taking this into consideration, it is quite plausible that they would pass legislation banning D8.
Missouri – Similarly to Kansas and Louisiana, passed legislation banning synthetic cannabinoids in July 2010. Bearing this in mind, it is safe to say that the probability that Missouri will introduce legislation banning D8
Nebraska – Nebraska does not currently have any approved program for the public to access cannabis, including medical marijuana, and has only introduced medical marijuana legislation as of March 30, 2021. Considering their stringent views towards cannabis, we feel Nebraska is a prime candidate to begin creating legislation banning all tetrahydrocannabinols, including D8.
North Carolina – With no medical marijuana program, there is a strong likelihood of North Carolina attempting to pass legislation that bans D8 in the near future, though nothing has been discussed publicly as of yet.
South Carolina – Similarly to North Carolina, South Carolina does not provide access to medical marijuana for its residents and there is a good chance that they will choose to ban D8 and other tetrahydrocannabinols.
Tennessee – Outlawed synthetic cannabinoids in July 2010, no MMJ program. Having banned synthetic cannabinoids in July 2010 and refusing to provide a legislative framework for citizens to have medical access to marijuana, Tennessee is quite intolerant of cannabis. That being said, we anticipate that this state will eventually create laws to ban D8.
Texas – Lacking any medical marijuana program or discussion of one, it is probable that Texas will institute legislation aimed at banning D8 and other tetrahydrocannabinols. Historically, the state tends to have an unfriendly attitude towards cannabis and a similar stance towards D8 can be expected.
Wisconsin – Wisconsin’s medical marijuana program is limited to CBD products and provides no framework for THC products. Taking their previous perspective on tetrahydrocannabinols, the likelihood of them instituting some sort of ban towards D8 and other tetrahydrocannabinols is high.
Wyoming – Wyoming is one of the few remaining states to not pass legislation decriminalizing marijuana and there is no discussion on instituting a medical marijuana program for residents. The states preceding outlook on cannabis dictates that they will create a ban on D8 at some point.
States that have enacted legislation to provide a framework for the legal sale of D8
Florida – Florida’s Department of Agriculture and Consumer Services oversees hemp production and released the following statement:
“Delta 8: At this time any hemp product intended for human or animal ingestion or inhalation which is sold in Florida must comply with all Florida statutes and rules. Any hemp or hemp extract products offered for sale or sold in Florida must comply with all labeling rules and have a certificate of analysis that shows a total THC (THCA x .8777 + THC Delta 9 = total THC) content of 0.3% or less. Any hemp or hemp extract product that does not comply with all statutes and rules is subject to enforcement and possible destruction by the Florida Department of Agriculture and Consumer Services. ”
This statement certifies that D8 does not run afoul of any Florida statutes and, in fact, certifies that the manufacture and distribution of D8 is allowed in Florida. Despite Florida’s conservative legislative trends, their public policy towards D8 is progressive and ultimately beneficial. By establishing a structured and comprehensive regulatory framework for manufacturers and distributors to follow, Florida is enabling a burgeoning industry to continue to grow and evolve, while simultaneously ensuring the safety of buyers by mandating certificates of analysis for all D8 items sold.
The irony in many of these D8 bans is that the state instituting said ban has already legalized and regulated a more potent tetrahydrocannabinol, Delta-9 THC. Pragmatism and an understanding of the history of cannabis prohibition indicates that comprehensive and well thought out regulation, as opposed to prohibition, of D8 would be the most prudent step to take. Some states, such as Florida, are deciding to proactively institute regulations and express support of the industry. Hopefully, this is indicative of an evolution in overall mentality towards the regulation of cannabis, in general, and Delta-8, specifically.
The laws surrounding Delta 8 THC are continuously changing. In order to stay compliant, it is vital that the nuances in legislation are closely followed and acted upon. At Injoy Extracts we will continue following the constantly evolving compliance landscape around Delta 8 THC