“Legal Delta 8 THC Sold Here!” or “Legal D8 Vape Carts Inside!” are two increasingly common signs found at small shops across the United States. With the exception of a handful of states (more on this in a bit) Delta 8 THC is quickly becoming one of the most popular legal cannabinoids on the market, with a torrent of gummies, tinctures and vape cartridges carrying the potential to overshadow even the juggernaut cannabinoid that is CBD.
But even though all of the assorted signs and advertisements say Delta 8 THC is legal… is it really? For a cannabinoid that claims to carry a good chunk of the psychoactive & physical effects of “regular” cannabis, how exactly is that legal under American federal law if the more traditional form of THC (Delta 9 THC) is still illegal? Well, as it ends up that’s a question with a really tricky answer, and (spoiler alert) by the end of this article you may be leaving with more questions than you came in with.
But, all of that aside, today we’ll be doing our best to discuss the legal nature of Delta 8 THC – What federal laws have to say, how individual state laws effect the sale of Delta 8 THC, and whether or not you can expect this particular cannabinoid to remain on your local store shelves.
What is Delta 8 THC?
If you’re here and reading this article, odds are you have some fundamental knowledge on the cannabis plant and how it works, so we’ll keep this as brief. For further reading, we recommend our full article “What is Delta 8 THC?“
Inside the cannabis or hemp plant are chemical compounds known as “cannabinoids” – Cannabis contains a large amount and variety of these cannabinoids, ranging from familiar names such as CBD to chemicals such as CBN, CBG, and many, many more.
Perhaps most commonly recognizable is Delta 9 Tetrahydrocannabinol, or what most people commonly refer to plainly as “THC”. Delta 9 (or just “D9”) THC is the molecule contained within cannabis that gets us high – THC’s psychoactive effects are well-known and noted, and most people who smoke or ingest cannabis products are looking for the effects of D9 THC.
However, also contained in the cannabis plant is a very similar chemical, called “Delta 8 Tetrahydrocannabinol” (or “D8 THC”). D8 THC is fairly similar to D9 THC, with the only significant difference being a double-bonded carbon atom in a different position (in Delta 9 THC this double bond is on the 9th carbon atom in the chain; for Delta 8 THC, this bond is on the 8th carbon atom). This similarity in composition means that Delta 8 THC also carries similar effects to Delta 9 THC, and will work (almost) as well in getting the end consumer high.
Interestingly, while Delta 8 isn’t considered to be quite as strong as Delta 9 THC, colloquial evidence shows that this may work to it’s benefit, with users of Delta 8 THC commonly reporting fewer adverse side effects than when taking D9 THC. Reduced anxiety and increased sensations of body relaxation are common reports from Delta 8 THC consumers, making D8 products an attractive alternative to traditional Delta 9 THC for medical marijuana patients.
Is D8 THC Legal?
American cannabis law is a tricky topic, with a legal minefield that gets harder to navigate by the day. Trying to answer question of “is Delta 8 THC legal” in a straight-forward manner provides issues, so here’s what we do know for a fact:
The Agricultural Improvement Act of 2018 (also known as “the 2018 Farm Bill”) made allowances for the growing of industrial hemp by farmers within the United States. The exact language of the farm bill means the FDA defines hemp as follows:
“The term ‘hemp’ means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”
This means that any part of the hemp plant – or any thing/products extracted from it – is fully federal legal, so long as it does not contain more than 0.3% of D9 THC per dry-weight volume. CBD, CBN, and even Delta 8 THC are all natural parts of hemp that aren’t D9 THC, meaning they are considered legal…
… so long as they come, naturally, from the hemp plant. Delta 8 THC is present in almost all hemp, but only in small amounts – To get any significant volume of Delta 8 THC typically involves a conversion process, either allowing Delta 9 THC to degrade over time to it’s Delta 8 form, or by transforming CBD into D8 THC via solvent & vacuum-based extraction methods. So bear this in mind, as it’s an important linchpin in the entire legality argument: Delta 8 can be found naturally in cannabis, but is usually made by converting CBD into Delta 8.
In August of 2020, the United States Drug Enforcement Administration released a ruling with the following statement: “For synthetically derived tetrahydrocannabinols, the concentration of D9 -THC is not a determining factor in whether the material is a controlled substance. All synthetically derived tetrahydrocannabinols remain schedule I controlled substances.”
What these three points boil down to is that the FDA considers Delta 8 THC products to be federally legal… so long as said product isn’t synthetically derived. If you were to take a hemp flower and, using extraction techniques, strip away the trace amounts of Delta 8 THC within and sell it, this would be perfectly legal under US federal law. If you were to take the same hemp material, extract it’s CBD, and then further refine that CBD into Delta 8 THC, the resulting product is not legal under US federal law.
But What About Naturally Occurring Delta 8 THC?
Of course, all of the Delta 8 products you see for sale currently could just be naturally extracted from the hemp plant. But “could” doesn’t mean “likely is”, and given (A) Delta 8 THC’s rare natural occurrence in the hemp plant and (B) the glut of CBD just hanging around not going anywhere, figuring out where all this Delta 8 on store shelves is coming from doesn’t take a master detective.
Growers and Delta 8 manufacturers in the cannabis industry certainly don’t seem to be very interested in detailing their process for creating Delta 8 THC, and with good reason – If the DEA could prove that a manufacturer’s D8 gummies were made from converted hemp-derived CBD (and were thus synthetic), said manufacturer would potentially be in for incredibly hefty fees and jail time.
However, proving where a manufacturer’s Delta 8 came from for a fact is easier said than done, leaving the legality of Delta 8 THC in sort of a standoff scenario – Though most Delta 8 products currently for sale are likely synthesized from CBD, making them illegal, the burden of proof is on the DEA before they can shut any individual manufacturers down, which isn’t a particularly easy task.
Ultimately what this all means is that the molecule Delta 8 is federally legal under United States law – It’s just how it got there that may be the illegal part. And unfortunately, that doesn’t even begin to dip into state law…
Is Delta 8 THC Legal In My State?
Probably, though you might be surprised. Various states have enacted their own cannabis laws in the years since the 2018 Agriculture Improvement Act, typically seeking to outlaw various cannabinoids within state borders. States such as Wyoming and Kansas have complete “zero tolerance” laws, banning even non-psychoactive cannabinoids such as CBD; tetrahydrocannabinols such as D8 or D9 are most certainly illegal in these areas.
Perhaps most perplexingly are states where cannabis consumption has been otherwise made legal, such as Colorado or Alaska, due to state laws similar to the DEA ruling against synthetic cannabinoids. Unfortunately, in states such as these, Delta 8 THC is treated similarly to chemical analogues such as JWH-018 or Spice/K2, despite Delta 8 being a naturally occurring cannabinoid in it’s own right.
Ultimately, what makes Delta 8 THC legal or not in your state will depend highly on your state laws, and even in states where D8 has been deemed illegal by authorities hemp products featuring Delta 8 may still be available for sale on store shelves. At the end of the day, it’s entirely up to you as the consumer to do the research and decide whether or not you feel legally safe purchasing Delta 8 THC in your home state.
So: Is Delta 8 THC legal? Well, Delta 8 THC is different from it’s close relative Delta 9 THC, and though they can provide some of the same effects the FDA’s current stance of not regulating other cannabinoids derived from hemp means that in places where Delta 9 THC products may be considered controlled substances, it’s analog cousin might not.
And while Delta 9 THC products may be more commonly known and recognized, that doesn’t mean that Delta 8 isn’t worth trying on it’s own merits; with fewer reported side effects compared to prescription medications and more traditional Delta 9-loaded medical marijuana, D8 could be a product worth exploring for those being treated by medicinal cannabis.
Ultimately, answers to the question of “Is Delta 8 THC Legal Inside the US” doesn’t come with a straightforward answer. With our current laws and regulations it’s difficult to say if any given sample of Delta 8 is considered “legal” or not, particularly given that most D8 THC is CBD-derived (and thus making it a synthetic D9 THC analogue).
We hope we’ve shed a little light on this topic in today’s article, or at the very least haven’t left you any more confused than you were when you first started reading. Again, the legality of cannabis in the US is a tricky subject, and while articles like the 2018 Farm Bill may have been intended to help clear the air around hemp and cannabinoids, unclear wording and varying state laws only work to compound the issue.