The legal challenges of Delta-8 THC

Delta-8 is currently banned or restricted in 20 states and is under review in more

For the hemp industry, 2021 had the makings of a banner year when looking at the benchmarks. Delta-8 became one of the hottest new products in the country and garnered attention nationwide, becoming a readily accessible and legal alternative to marijuana in states with little or no access, as well as in those with existing legal marijuana programs. The DEA clarified its stance on Delta-8 and other cannabinoid products as legal. Hemp, marijuana, or cannabis by any other name has seen a growing acceptance in recent years.

The cannabis leaf has become mainstream and in many ways is often revered as a wellness product in a more health-conscious world.

But as with any new commodity, attention and popularity begat scrutiny which quickly turned to regulation and oversight.

What is Delta-8 THC

Delta-8 is a naturally occurring cannabinoid and derived from hemp is legalized in the 2018 Farm Bill. As such, it is not prohibited under federal law. But almost all Delta-8 products on the market are processed and are not directly extracted. This means that in almost every case Delta-8 is converted from CBD – a cannabinoid that has garnered popularity in recent years and has a litany of health benefits with no intoxicating effects, that conversion process and the intoxicating and psychoactive side effects of Delta-8 have drawn the ire of many regulating bodies and legislators.

The push against Delta-8

As Delta-8 gained popularity it became a hot-button issue in many states. With few to no restrictions, no testing requirements, and no labeling requirements, health and safety issues, as well as a need for consumer information and education created valid concerns. All of this while federal legality was still somewhat uncertain.

The Federal Analogue Act, as well as the Synthetic Drug Abuse Prevention Act, combat synthetically created “designer drugs.” These laws qualify drugs that are similar in chemical structure, and that have an effect similar or greater to that of a controlled substance, can be treated as a Schedule I or Schedule II controlled substance.

With that in mind, the synthetic conversion of CBD to Delta-8 muddied the clarity around the process.

While the DEA has seemingly made their position known, a September letter from DEA to Dr. Donna C. Yeatman, R.Ph. Executive Secretary of the Alabama Board of Pharmacy unambiguously declared, “cannabinoids extracted from the cannabis plant that have a Delta-9 -THC concentration of not more than 0.3 percent on a dry weight basis meet the definition of “hemp” and thus are not controlled under the CSA,” the warnings from FDA and CDC issued earlier in 2021 have pushed more states to examine Delta-8 and other potentially intoxicating hemp products.

States restrict Delta-8

New York‘s ban of Delta-8 occurred when language restricting the production of the compound was added in updated hemp regulations early in 2021. The regulations state, “Section 1005.7 Requirements for Cannabinoid Hemp Processors (a) All cannabinoid hemp processors shall: … (11) not use synthetic cannabinoids, or Δ8-tetrahydrocannabinol or Δ10-tetrahydrocannabinol created through isomerization, in the extraction or manufacturing of any cannabinoid hemp products.”

In June, Connecticut announced that only licensed marijuana businesses will be allowed to sell Delta-8 products. Similarly, Michigan’s restriction of Delta-8 sales and production treats the compound in a similar fashion to the state’s existing marijuana products.

Legislative bans and regulatory clarifications are currently being considered in other states including Alabama, Illinois, and Oklahoma.

In Oregon, HB 3000 did not ban Delta-8 THC, but it sets a new precedent under which hemp-derived products and marijuana products are now both considered adult use items.

Products with 0.5 milligrams of Delta-8 THC, or any other products containing “intoxicating cannabinoids” or “artificially derived cannabinoids” are considered Adult Use Cannabis Items.

While HB 3000 does not provide for restricted sales of these items at this time, aside from an age restriction of 21+, the law does grant authority to the Oregon Liquor Control Commission (OLCC).

Later this month, the OLCC, ODA, and the Oregon Health Authority (OHA) are expected to set new potency and concentration limits for THC and other cannabis intoxicants in hemp products intended for sale to adults. The legislation also requires establishing tracking requirements for cannabinoid hemp commodities and products intended for human consumption, similar to tracking cannabis products sold in the OLCC regulated recreational or adult-use market. All of this points to the eventual implementation of a requirement that stores selling Adult Use Cannabis Items hold a license.

On October 15, the Texas Department of State Health Services posted an update on their Consumable Hemp Program page saying, “Texas Health and Safety Code Chapter 443 (HSC 443), established by House Bill 1325 (86th Legislature), allows Consumable Hemp Products in Texas that do not exceed 0.3% Delta-9 tetrahydrocannabinol (THC).  All other forms of THC, including Delta-8 in any concentration and Delta-9 exceeding 0.3%, are considered Schedule I controlled substances.”

That decision has been challenged and a preliminary injunction in Texas holds Delta 8 in a legal gray area, as it remains legal – but with an asterisk, making it a risky investment for retailers.

In Missouri, state regulators proposed a ban on the sale of any product created containing cannabinoids created through chemical conversion of other compounds in dispensaries. That language was strongly objected to by the Missouri Hemp Trade association. To this point, that ban has not been finalized.

More recently, in December, Derek Schmidt, Kansas Attorney General, wrote an official opinion declaring, “Delta-8 THC comes within the definition of a Schedule I controlled substance and is unlawful to possess or sell in Kansas unless it is made from industrial hemp and is contained in a lawful hemp product having no more than 0.3% total tetrahydrocannabinols (THC). Unlawful hemp products include cigarettes, cigars, teas, and substances for use in vaping devices. Delta-8 THC derived from any source other than industrial hemp is a Schedule I controlled substance and unlawful to possess or sell in Kansas. Other federal and state laws and regulations place additional limits on the legality of products containing THC and other cannabinoids.”

Important to note is that Kansas law does not differentiate between forms of THC such as Delta-8, Delta- 9, or Delta-10, as such, the limit of 0.3% applies to the total amount of all THC in a final hemp product, including Delta-8, Delta-9, and all other tetrahydrocannabinol. This distinction combined with Schmidt’s formal opinion effectively bans Delta-8 products in the state.

Currently, Delta-8 is banned or sales restricted in Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Kansas, Kentucky, Idaho, Iowa, Michigan, Mississippi, Montana, Nevada, New York, North Dakota, Rhode Island, Utah, Vermont, and Washington.

Texas, as previously mentioned, lies somewhere in between as we await a decision from the state’s Supreme Court.