Is Delta 8 Legal?
The first week of March 2022 has been a busy week for both stores and counties from Georgia, Kansas, Kentucky, and Virginia as several notices were sent out asking store owners to take down Delta-8 (delta-8-tetrahydrocannabinol) products from shelves.
Smoke shops in Catoosa County, Georgia received a letter from Sheriff Gary Sisk informing them that their store is violating Georgian law by selling delta-8 products containing illegal amounts of THC (tetrahydrocannabinol).
April 30; that’s the deadline Sheriff Sisks gave the recipients of the letters for the removal of delta-8 products from shelves.
The Shoppe, one of the stores affected by the notice, already pulled out more than 380 items amounting to $11,000 in revenue lost.
Angela Pence, who’s running for Congress, shared her thoughts on Facebook after listening to The Shoppe’s story.
Georgian supporters of the delta-8 movement set up a Town Hall meeting near The Shoppe.
Johnson County District Attorney Steve Howe announced that shops selling delta-8 products have until March 20 to remove said items from their shelves. The move followed after Kansas Attorney General Derek Schmidt ruled that delta-8 is illegal unless it is made from industrial hemp.
“I think honestly this is one of the most ridiculous things,” as per Katrina Madouras of Kure CBD & Vape. Even if the store’s inventory would still meet the standards to be exempted, her store already shipped out products out of caution.
Delta-8 business owners are getting anxious by the day as the Senate Bill 591 filed by Emmett W. Hanger, Jr. continues to weave its way towards the governor’s desk.
“The bill modifies the definition of “marijuana” in several Code sections to (i) include any substance containing a total tetrahydrocannabinol concentration that exceeds 0.3 percent or more than 0.25 milligram of tetrahydrocannabinol per serving or more than one milligram per package…”
Additionally, the bill defines tetrahydrocannabinol “to include any naturally occurring or synthetic tetrahydrocannabinol, including its salts, isomers, or salts of isomers,” which effectively includes delta-8.
If we are to interpret that in industrial terms, delta-8 products shouldn’t exceed the one-milligram percent limit on delta-8 per package or it will be considered “marijuana,” which is a controlled substance.
The bill’s interpretation of marijuana and tetrahydrocannabinol, if passed, could remove most of the existing delta-8 products in Virginia as some exceed the one-milligram percent limit.
Even if manufacturers could successfully calibrate the formulation to cater to the new bill, who would buy a less potent delta-8 product?
RELATED: In What States is Delta 8 THC Legal?
Is Delta 8 Legal?: Farm Bill Confuses State Legislators
The 2018 Farm Bill signed by former President Donald Trump, decriminalized cannabis and compounds derived from it under certain conditions. However, it also left a string of unanswered questions, particularly on the legality of delta-8, a compound derived in cannabis in low concentrations.
One of the main conditions legalizing cannabis is if it only has 0.3 percent of delta-9-tetrahydrocannabinol (delta-9 THC) by dry weight. Delta-9 THC is the main psychoactive compound in cannabis that gives the feeling of “high.”
At 0.3 percent, Delta-9 THC isn’t potent enough to be psychoactive, thus, the bill labels it as “hemp.” If the cannabis plant contains more than the 0.3 percent Delta-9 THC limit, it’s called “marijuana,” a plant that is still illegal under federal law.
Compounds derived from hemp like cannabidiol (CBD) can be legally sold and bought under certain conditions.
Similar to CBD, delta-8 can also be isolated from hemp but is too low in concentration for manufacturers to care to do an extraction process for it. Because of this, delta-8 is often synthesized from CBD rather than being directly extracted from the plant.
Because delta-8 can be synthesized from CBD (a legal compound), people assume that delta-8 is also legal.
In August 2020, the U.S. Department of Justice issued interim guidance saying that the 2018 Farm Bill does not affect synthetically-made tetrahydrocannabinols. All synthetically-made tetrahydrocannabinols remain schedule I controlled substances.
The Drug Enforcement Agency (DEA) also stated that Delta-8 “synthetically produced from non-cannabis materials is controlled under the CSA [Controlled Substances Act] as a ‘tetrahydrocannabinol.’”
The question here is, whether or not CBD-derived delta-8 can be considered synthetic or not. This question also applies to all compounds that can be synthesized from compounds that can be directly extracted from hemp.
This is what the Farm Bill fails to specify and is now a loophole in the bill that’s open for various interpretations from different states.
Manufacturers of delta-8 products, store owners, and consumers who aren’t aware of this legal confusion are left in the dark and are now scrambling as authorities from certain states start to hand out removal notices left and right.
Is Delta 8 Legal?: How Is It Seen Through Federal Lens?
The U.S. Food & Drug Administration or the FDA stated in their article “5 Things to Know about Delta-8 Tetrahydrocannabinol – Delta-8 THC,” that “the natural amount of delta-8 THC in hemp is very low, and additional chemicals are needed to convert other cannabinoids in hemp, like CBD, into delta-8 THC (i.e., synthetic conversion).”
The FDA explicitly said that the conversion of delta-8 from CBD is a “synthetic conversion.” However, there are several ways of synthesizing delta-8 from CBD.
For one, there’s the method that involves the use of highly caustic and poisonous acids and solvents. The second one is through distillation that needs a T41 bleaching clay.
The inclusion of acids such as T41 bleaching clay in the process of delta-8 synthesis may be a sign that delta-8 has indeed been synthetically made but so far, this hasn’t been cleared.