What is the Legal Status of Delta-8 THC?

Recreational and medical cannabis legalization has come a long way since California voters approved the medical marijuana Compassionate Use Act of 1996, Here in 2021, 15 states have legalized adult recreational cannabis markets and 36 states have established regulated medical programs of their own. Still some jurisdictions in the country have yet to come around on the money-making and medical potential of the cannabis plant.

An outdated Reefer Madness-era federal prohibition is part of the reason why legal, hemp-derived CBD has exploded into a multi-billion dollar industry. Consumers want the benefits of cannabis and CBD without the worries of breaking local laws and facing prison for trying to take the edge off symptoms of medical ailments. Hence hemp.

Medical cannabis patients living in more restrictive states are seeking a similar prosecution-exempt alternative that will replicate the psychoactive effects of THC-rich cannabis without the risk of arrest. That’s where Delta-8 comes in. However, the synthetically-produced version of delta-8-THC, made by altering hemp-derived CBD (hence it’s legal gray area) is not necessarily entirely safe.

A keen watcher of the headlines will know that Delta-8 THC has been stirring up drama recently, but still not know what Delta-8 THC actually is. How is Delta-8 different from other types of THC? Why are some states banning the substance, while others are greenlighting Delta-8-infused products to hit the shelves of their stores? We asked ourselves the same things.

What Exactly Is Delta-8 THC?

Delta-8 is considered a “minor cannabinoid.” It has milder psychoactive effects compared to the standard Delta-9 THC found in strains. The milder mind-altering effects of Delta-8 THC make it an attractive option for healthcare professionals and parents and guardians seeking to help kids with cancer manage their symptoms through therapeutic cannabis products free from potentially disruptive psychoactive effects.

Delta-8 THC has may be more shelf-stable than other THC-rich options, which makes it ideal for use in topical creams, patches, vape cartridges, and edibles without fear of potency fading after a short time.

Finally, Delta-8 THC is an attractive option for cannabis patients dealing with mental health conditions, such as anxiety disorders. However, the safety profile of non-naturally-made delta-8-THC is yet to be determined, and is arguably unsafe due to the industrial processes used to make it.

So what is all the fuss about? Why have states like Alaska, Arkansas, Arizona, Colorado, Delaware, Idaho, Iowa, Mississippi, Montana, Rhode Island, and Utah all banned Delta-8 THC entirely?

Safety Concerns

As most delta-8-THC products are made by chemically altering hemp-derived CBD using industrial chemicals, there may be undesirable byproducts found in what ends up on the shelves. Moreover, less-than-ethical (or just naive) producers may make misleading medical claims, or not appropriately test their products, or not label the right cannabinoid content. This means that there are many appropriate concerns, and it’s not simply a case of misguided concerns.

However, it is certainly arguable that the lack of legal access to cannabis has made potentially less-safe alternatives more attractive.

Because cannabis remains federally illegal,  the legal status of Delta-8 remains complicated.

Outside the handful of states mentioned above, Delta-8 THC should be perfectly legal all across America. After all, the U.S. government actually holds the patent for converting CBD into Delta-8. And the 2018 Farm Bill legalized all hemp production and everything in the composition of hemp products, as long as the levels of standard Delta-9 THC remain below 0.3 percent.

So since hemp-derived CBD is legal and Delta-8 is derived from hemp CBD, it should be perfectly legal, right?  Arguably, that’s correct. Right now, Delta-8 THC sits in a legal gray area, a de facto status of legality that many states see as a quasi-legal loophole. The perception that Delta-8 THC has slipped through the regulatory net is why some jurisdictions are working so hard to close it.

Several state lawmakers with prohibitive mindsets are campaigning to join the list of 11 states that have official legislation on the books to restrict or fully ban Delta-8 THC. Oklahoma, for example, has a bill pending that would legally define Delta-8 as cannabis and treat it to a similar standard as delta-9 rich cannabis. Alabama’s state Senate has a bill in the works that are in line with the Oklahoma effort to ban Delta-8 THC. North Dakota legislators recently voted to accept amendments that would change the state’s definition of THC. Michigan is considering restricting Delta-8 THC sales to licensed dispensaries. On March 31, 2021, New York state moved to legalize adult use marijuana. A little more than a month later, regulations drafted for the state’s legal cannabis market include a proposed ban of Delta-8 THC.

Other states have taken a contrary approach to their Delta-8 THC legislative efforts. Washington state’s Liquor and Cannabis Board, for example, recently put out a policy statement that declares Delta-8 THC can be legally derived from licensed cannabis instead of hemp. Oregon lawmakers have taken a similar approach. State officials are working on regulations that would create a definition for “artificially derived” cannabinoids in order to regulate Delta-8 under the state’s medical and adult-use cannabis laws.

The Bottom Line

While some states might be moving toward restricting or banning Delta-8 THC, just as many more are happy to extend the legal grey area. Cannabis brands are cashing out on the open-to-interpretation regulations.

Delta-8 products are flying off the shelves in states where standard Delta-9-rich THC is illegal or hard to access. States like Texas, for example, have a massive demand for Delta-8 products. There might come a day when Delta-8’s legality is challenged in a higher court or legislated further like Oregon and Washington states have.

In the meantime, we recommend people be wary of delta-8-THC products.

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