What’s the deal with Delta-8 THC?
December 08, 2021
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Have you ever walked into your local bodega and wondered how they can sell things that look and smell like cannabis? That “stuff” is delta-8-tetrahydrocannabinol (THC), an isomer of delta-9-THC (the compound most people buy when they buy cannabis products from a government pharmacy). Delta-8 and Delta-9 are very similar, the only real chemical difference being where the double bond is on the carbon chain (on the 8th carbon chain for Delta-8 and on the 9th carbon chain for Delta-9). Just like Delta-9, Delta-8 is a natural part of the cannabis plant. However, due to the small amounts of Delta-8-THC found in the plant itself, most of the Delta-8-THC is made in a laboratory. If you read this in New York, the corner smoke shop doesn’t sell Delta-8 due to the recent legalization of recreational cannabis – it’s because of a loophole New York is now actively trying to fill (more on that later).
You are probably wondering, “How is Delta-8 legal at the federal level?” Well the answer to that may be, “It isn’t”. The Farm Bill 2018 legalized hemp and “all cannabinoids derived from hemp”. However, in August 2020, the DEA released a tentative final ruling that would make the production of Delta-8 THC illegal. Delta-8 defenders argue that it is legal under the Farm Bill because it is “made from hemp.” Opponents point out that Delta-8 is a derivative of cannabis that has psychoactive effects, arguing that – because it is found in such low levels in the plant – it is just the by-product of an unforeseen chemical change in hemp, which is not is what the Farm 2018 Bill should approve. In other words, Delta-8 walks, speaks and smells like cannabis and should therefore be considered marijuana for the purposes of the Controlled Substances Act and subject to the same state and local regulatory requirements as Delta-9 THC.
As with anything cannabis-related, how to deal with the sale and regulation of Delta-8 varies from state to state. Most states are currently adopting a “Prohibit Now, Study Later” approach – as fifteen states have already taken steps to restrict or ban Delta-8, including New York, Connecticut, Colorado, Washington, and Vermont. Six other states, including Michigan and Illinois, are now considering legal bans. New York recently updated its draft regulations for the manufacture, processing, and sale of “cannabinoid hemp” (i.e., CBD) products – which are not yet required to take effect – to prevent processors from using “synthetic cannabinoids, or Delta-8”. “Prohibit isomerization-produced THC from the extraction or manufacture of cannabinoid hemp products.” In short, New York seems poised to close the loophole that allowed Delta-8 to remain under government oversight for years revoke.
With states continuing to ban or restrict the production and sale of Delta-8, it is likely that federal regulators will need to look specifically at the issue in the near future to clear the current confusion. In the meantime, when and how Delta-8 (if at all) can be sold will be left to the states. Make sure to check out our That’s Just Your Opinion Man section below to explain why this is so important to the cannabis industry as a whole.
The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.
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