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Latest Burning Question on the Cannabis Front: Is Delta-8 THC Legal?

Fresh agricultural hemp grows in the countryside
By Richard Dahl on March 26, 2021 2:04 PM

The hottest new product in the cannabis industry is called Delta-8 THC, and it is making a lot of money for people who claim it's totally legal.

But is it?

Before we delve into that question, maybe we should attempt to explain what Delta-8 THC really is.

Marijuana and hemp are essentially the same plant, with one large difference: Marijuana has much higher concentrations of Delta-9 THC, the psychoactive ingredient that makes people high.

The less-potent Delta-8 THC is present in both plants and has been mostly overlooked by entrepreneurs and lawmakers alike. But that began to change with the passage of the 2018 Farm Bill, which legalized hemp farming and distribution, including sale of the plant's byproducts. The only exception was products that contain more than .03% Delta-9 THC.

Because the law did not mention Delta-8, entrepreneurs quickly identified it as something they could extract and sell as a legal smoking alternative and edible. Although Delta-8 THC lacks the punch of its Delta-9 cousin, it supposedly can produce a mild high and provide pain relief.

The Lay of the Legal Land

The laws governing marijuana use in the U.S. are a strange patchwork. While pot remains illegal in the eyes of the federal government, 14 states now permit recreational use.

In the other 36 states (many of which OK the medical use of marijuana), Delta-8-THC products are now being openly sold and purchased. Gummies are popular, as are edibles and vape products.

However, as the New York Times pointed out, the legality of this marketplace is not so clear-cut. Alex Buscher, a Colorado lawyer who focuses on cannabis law, told the Times, “Dealing in any way with Delta-8 THC is not without significant legal risk."

Here's why:

Last August, the Drug Enforcement Administration issued an “interim final rule" on implementation of the hemp provisions of the 2018 Farm Act and at least seemed to raise the possibility of criminality regarding Delta-8.

The “legal or not" issue revolves around how Delta-8 THC is produced. While hemp products remain legal under the language of the Farm Act, the DEA's interim final rule states that “(all) synthetically derived tetrahydrocannabinols (THCs) remain schedule 1 controlled substances."

This is a problem for the makers and sellers of Delta-8 THC because most of their products are produced synthetically from CBD. You probably are familiar with CBD as a widely available, and apparently safe and healthy, hemp-based product that can be found in everything from lattes to lotions.

The reason why producers rely on the synthetic method is that Delta-8 THC is not present enough in most hemp strains to make extraction financially viable. Savvy cannabis entrepreneurs found that Delta-8 THC can be produced efficiently, however, through a “chemical conversion" of CBD.

Looking to the Future

In other words, although both CBD and Delta-8 THC appear to be legal under the Farm Act, when you speed up the extraction process with alchemy the legal picture turns cloudy.

So where does Delta-8 THC stand? We don't know. Federal agencies, including the Drug Enforcement Administration, are considering their options for regulation and enforcement.

But even if Delta-8 THC passes legal muster nationally, that doesn't mean that anyone in the country can use it. The use of cannabis products of any kind is still forbidden in 12 states.

So if you've heard about the pleasure-inducing effects of Delta-8 gummies, maybe you should check your state's cannabis laws first.

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