Is delta-8 THC a legal product in the US?

CBD-Intel’s opinion from a reading of laws at the federal level is that – currently – delta-8 THC should be considered legal if derived from a legal hemp plant. This is because the federal definition of hemp encompasses multiple parts including cannabinoids, derivatives and isomers and shields them from the federal definition of tetrahydrocannabinols listed in Schedule I of the Controlled Substances Act.

The full 2018 Farm Bill definition of hemp reads: “The plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”

These are then removed from the listing for tetrahydrocannabinols because it states: “Tetrahydrocannabinols does not include any material, compound, mixture, or preparation that falls within the definition of hemp set forth in 7 U.S.C. 1639o.” (7 U.S.C. 1639o is the codified version of the 2018 Farm Bill.).

However, this opinion is open to contest and it is likely that government agencies such as the Drug Enforcement Administration (DEA) will take a different view when it probably addresses the substance in the publication of its final rule.

Most likely the DEA – if it chooses to act on delta-8 THC, which CBD-Intel feels is the most likely chance of regulation of the substance at the federal level – will argue that delta-8 as derived from hemp falls under the definition of being a synthetic cannabinoid.

This is because commercial delta-8 requires further processing as it only naturally occurs in the plant in minute amounts.

The DEA already stated in its interim rule that “For synthetically derived tetrahydrocannabinols, the concentration of Δ9-THC is not a determining factor in whether the material is a controlled substance [in other words whether it comes from hemp (below the federal THC limit) or from cannabis (above the federal threshold)]. All synthetically derived tetrahydrocannabinols remain Schedule I controlled substances”. And: “For tetrahydrocannabinols that are naturally occurring constituents of the plant material, Cannabis sativa L., any material that contains 0.3% or less of Δ9-THC by dry weight is not controlled.”

Therefore the DEA would have to argue that delta-8 is a synthetically derived tetrahydrocannabinol that is not a naturally occurring constituent of the plant material.

However, the DEA will have to be extremely careful about how it words any rule defining delta-8 THC as a synthetic cannabinoid. Currently terms such as “naturally occurring” are not defined and any rule creation attempting to define delta-8 THC runs the risk of also including cannabinoids such as CBD in its definition as it too naturally occurs mostly in its acid CBDA form in the plant, requiring decarboxylation to be converted into CBD.

Any definition would thus have to be very precise to not contravene the Farm Bill’s clear intent by effectively controlling multiple other hemp-derived cannabinoids.

For a further look at the legality of delta-8 THC at the federal level in the US, consult our report. A state-by-state guide will also be published in the near future.

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*Under CBD-Intel’s editorial discretion

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