Delta-8: What Is and What Should Never Be

The United States Supreme Court once famously wrote that “[l]iberty finds no refuge in a jurisprudence of doubt.” There is perhaps no area of the law where doubt rules more than the cannabis industry, and perhaps no corner of that industry more shrouded in doubt than Delta-8 THC.

When you operate in the cannabis industry — with all of its gray areas, evolving rules, and flat-out contradictions — sometimes you have to become comfortable being uncomfortable. That is, you carefully analyze the risks and benefits of a course of action, and if you move forward, you understand that there is always some possibility that you will come across someone who views the state of the law differently than you do.

The point of this post is not to advocate that Delta-8 THC and the like be made illegal or even that Delta-8 THC be more liberalized; rather, the point is that the hemp industry and hemp customers need more certainty about 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 either hemp or cannabis plants. Although its chemical structure is very similar to Delta-9 THC (the main psychoactive compound found in marijuana), Delta-8 THC is thought 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 Bill. Both hemp and marijuana are types of cannabis plants, but the Farm Bill for the first time exempted “hemp” from the definition of “marijuana.” Specifically, the Farm Bill legalized hemp and its derivatives at the federal level, as long as it contains less than 0.3% Delta-9 THC per dry mass — levels generally considered too low to have any psychoactive effect. Because the definition of marijuana (and, by extension, hemp) is tied to Delta-9 THC, Delta-8 THC is not subject to the restrictions on marijuana in the Farm Bill. As a practical matter, Delta-8 THC is left with no current federal oversight.

Despite the federal status of Delta-8 THC, a number of states have passed laws regulating or outright banning Delta-8 THC and similar products.

For example, Delta-8 is illegal in Montana; however, recreational marijuana use is legal. Similarly, despite its relaxed regulation of marijuana, Colorado lawmakers recently banned Delta-8 citing safety concerns. In New York, the sale, purchase, distribution, and production of Delta-8 products are banned, while the state’s use and possession laws remain unclear.

These laws demonstrate the states’ ability to establish more restrictive laws than those in the Farm Bill. So, even if Delta-8 is legal on a federal level, states can choose, and have chosen, to restrict the use of Delta-8 or ban it altogether.

So What’s Next?

This largely depends on Congress and state legislatures. Left alone, the potential for Delta-8 THC remains strong.

At the federal level, though, is it best for the hemp industry to seek clarity or to continue operating as is and hope for the best? More bluntly (sorry), should the hemp industry ask for permission or forgiveness?

We suspect there are many hemp operators who prefer the status quo to the uncertainty of what a clearer law would be when it comes to Delta-8 and its ilk. After all, the money is flowing in right now, and there is little federal government oversight. But we can’t help but wonder if that preference isn’t at least a little short-sighted, to say nothing of the fact that it is certainly bad public policy to have a booming, largely unregulated market for a product many regulators and many in the public do not understand. Conventional wisdom is that we will have another federal Farm Bill towards the end of 2023. We strongly suspect that Congress will address Delta-8 and similar isomers in that legislation, although it remains an open question whether Congress will choose to close the loophole or make clear that Delta-8 is legal and direct USDA (or some other federal agency) to regulate it like other hemp-derived products. Until then, absent some state law to the contrary, we suppose Delta-8 is ready when you are.

Photo of Whitt Steineker
Whitt Steineker

As co-chair of Bradley’s Cannabis Industry team, Whitt represents clients in a wide range of cannabis issues. In addition to providing a full suite of legal services to cannabis companies, Whitt and the Cannabis Industry team advise non-cannabis clients – from banks to…

Photo of Elizabeth R. Hobbs
Elizabeth R. Hobbs

Lizzie Hobbsis an associate in the Litigation Practice Group.

Lizzie received her J.D. from the University of North Carolina School of Law, where she was articles and notes editor for the North Carolina Banking Institute Journal. She earned a B.A. in…

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