The Supreme Court of the United States once famously wrote that “[l]freedom finds no refuge in the jurisprudence of doubt. Perhaps there is no area of law where doubt rules more than the cannabis industry, and perhaps there is no more doubtful corner of the industry than Delta-8 THC.
When you’re in the cannabis industry—with all its gray areas, evolving regulations, and apparent contradictions—sometimes you have to put up with discomfort. That is, you carefully analyze the risks and benefits of this or that course of action, and if you go ahead, you understand that there is always some chance that you will run into someone who views the state of the law differently than you do.
The purpose of this post is not to advocate for Delta-8 THC and the like to be made illegal, or even for Delta-8 THC to be more liberalized; rather, the point is that the hemp industry and hemp buyers need more confidence in Delta-8 THC and similar products.
What is Delta-8 THC?
Delta-8 is a form of the chemical compound tetrahydrocannabinol (THC) that can be extracted from hemp or hemp plants. Although its chemical structure is very similar to Delta-9 THC (the main psychoactive compound found in marijuana), Delta-8 THC is believed to produce a different type of euphoric effect than Delta-9 THC.
Legal status of Delta-8 THC
Delta-8 THC essentially exists because of a loophole in the 2018 Farm Act. Both hemp and marijuana are cannabis plant species, but the Farm Act removed “hemp” from the definition of “marijuana” for the first time. Specifically, the Farm Act legalized cannabis and its derivatives at the federal level if they contain less than 0.3% delta-9 THC by dry weight — levels that are generally considered too low to have any psychoactive effect. Because the definition of marijuana (and, by extension, hemp) is related to Delta-9 THC, Delta-8 THC is not subject to the Farm Law marijuana restrictions. In practice, Delta-8 THC remains without federal oversight.
Despite Delta-8 THC’s federal status, a number of states have passed laws to regulate or outright ban Delta-8 THC and similar products.
For example, Delta-8 is banned in Montana; however, recreational marijuana use is legal. Similarly, despite relaxed marijuana regulation, Colorado lawmakers recently banned Delta-8, citing safety concerns. In New York City, the sale, purchase, distribution, and manufacture of Delta-8 products is prohibited, while state laws on use and ownership remain unclear.
These laws demonstrate the ability of states to enact stricter laws than those contained in the Farm Act. Thus, even if Delta-8 is legal at the federal level, states can, and have chosen, to restrict or ban the use of Delta-8 entirely.
So what’s next?
This largely depends on Congress and state legislatures. Left alone, the potential of Delta-8 THC remains strong.
However, at the federal level of the hemp industry, is it better to seek clarity, or to continue as is and hope for the best? More directly (sorry), should the cannabis industry ask for permission or forgiveness?
We suspect there are many cannabis operators who prefer the status quo to uncertainty about what a clearer law will be when it comes to Delta-8 and its ilk. After all, the money is flowing right now and the federal government has little to no control over the situation. But we can’t help but wonder if this preference isn’t at least a little short-sighted, not to mention the fact that it’s certainly bad government policy to have a booming, largely unregulated market for a product. which many regulators and many in the public do not understand. The conventional wisdom is that by the end of 2023 we will have another federal farm bill. We strongly suspect that Congress will address delta-8 and similar isomers in this legislation, although it remains an open question whether Congress decides to close the loophole or make it clear that Delta-8 is legal and requires the USDA (or what – by any other federal agency) regulate it like other hemp-derived products. Until then, unless any state law prohibits otherwise, we assume the Delta-8 is ready, as are you.