Explaining Why Delta-8 THC Is In A Legal Gray Zone Locke Lord LLP

Delta-8 THC is the latest trend permeating the cannabis industry. The National Cancer Institute’s definition of Delta-8 THC says it is a “THC analogue” that contains neuroprotective properties that can increase appetite and reduce nausea, anxiety, and pain. It produces some psychotropic effects but has “lower psychothropic potency” than Delta-9 THC. In other words, it’s a cannabinoid that can produce the “high” traditionally associated with Delta-9 THC, but not as much. The interesting thing about Delta-8 THC is that it can be produced from hemp as defined in the Farm Bill of 2018, which unlike marijuana is federally legal. This would seem to make Delta-8 THC (and products containing it) legal and freely enjoyable across the United States, but it’s not that simple.

The legal complexities arise from how Delta-8 THC can be engineered in a lab and from the DEA’s Interim Final Rule on Farm Bill Implementation which was released in August 2020. The Farm Bill itself makes no mention of Delta-8 THC as lawmakers focused only on Delta-9 THC at the time of its adoption, but the interim final rule states that the Farm Bill “does not affect control status synthetic tetrahydrocannabinols (for Controlled Substance Code 7370) because the statutory definition of ‘hemp’ is limited to material derived from the Cannabis sativa L plant. For synthetic tetrahydrocannabinols, the concentration of Delta 9-THC is not a determining factor in whether the material is a controlled substance. All synthetic tetrahydrocannabinols remain Schedule I controlled substances.“(I underline). The DEA has yet to release a final rule, but the final rule is expected to take the same position.

Although Delta-8 THC is a natural cannabinoid, the concentrations of this cannabinoid naturally found in cannabis plants are low. Extracting natural Delta-8 THC and making products from it becomes economically difficult. However, there is a process that can convert CBD (which is naturally contained in much higher levels in cannabis plants) to Delta-8 THC and companies are becoming more and more efficient in this process. The federal legality of Delta-8 THC therefore depends on whether the process of converting other cannabinoids (such as CBD) into Delta-8 THC makes the product “synthetic”. It sounds like an easy answer to understand, but neither the Farm Bill nor the Controlled Substances Act defines what it means to be “synthetic”. Reasonable minds could certainly argue that a natural cannabinoid is nonetheless synthetic when converted in the laboratory. However, it is equally reasonable to consider that synthetic drugs are those developed from non-organic sources. In fact, the National Institute on Drug Abuse published a document on justice.gov which states “[s]Ynthetic cannabinoids refer to a growing number of man-made mind-altering chemicals that are either sprayed onto dried and shredded plant material so that they can be smoked (herbal incense) or sold as liquids. vaporize and inhale in electronic cigarettes and other devices. (liquid incense). This definition would not include Delta-8 THC converted from CBD.

So it’s safe to say that Delta-8 THC is currently in a legal gray area. There are risks to the companies that currently make and sell Delta-8 THC products, but there is also no clear path to prosecution for DEA. In this context, it is essential for companies to consult with a legal team before deciding to embark on the production of Delta-8 THC or to expand Delta-8 THC products into a new state. If you are considering entering the Delta-8 THC space, be sure to follow our Blog to stay on top of this and all things related to the cannabis industry.


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