What’s The Deal With Delta-8 THC? – Cannabis & Hemp – United States – Mondaq News Alerts

United States: What’s The Deal With Delta-8 THC?

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Have you ever walked into your local bodega and wondered how
they could sell stuff that looks and smells just like cannabis?
That “stuff” is Delta-8-tetrahydrocannabinol (THC), an
isomer of Delta-9-THC (the compound that most people purchase when
they buy cannabis products at a state-legal
dispensary).  Delta-8 and Delta-9 are very similar, with
the only real chemical difference being where the double bond sits
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 component of the cannabis
plant.  However, due to the small amounts of Delta-8 THC
found in the plant itself, most Delta-8-THC is created in a
lab.  If you’re reading this in New York, the smoke
shop around the corner isn’t selling Delta-8 due to the recent
legalization of recreational cannabis – it’s because of a
legal loophole that New York is now actively trying to close (more
on that later).
 
You’re probably wondering, “how is Delta-8 legal at the
federal level?” Well, the answer to that may be that “it’s not”.  The 2018 Farm Bill legalized
hemp and “all hemp-derived cannabinoids.” However, in
August 2020 the DEA released an interim final rule, which would
make the production of Delta-8 THC illegal. Defenders of Delta-8
argue that because it is “derived from hemp”, it is legal
under the Farm Bill. Opponents point out that Delta-8 is a
derivative of cannabis that has psychoactive effects and argue that
– because it appears in the plant in such small quantities
– it’s just the byproduct of an unforeseen chemical
alteration to hemp, which is not what the 2018 Farm Bill was meant
to authorize.  In other words, Delta-8 walks, talks and
smells like cannabis, and should therefore qualify as marijuana for
the purposes of the Controlled Substances Act and should be subject
to the same state and local regulatory requirements as Delta-9
THC. 
 
As with all things cannabis, the question of how to deal with the
sale and regulation of Delta-8 varies state to
state.  Most states are currently taking a “ban it
now, and study it later” approach – as fifteen states
have already taken steps to restrict or ban Delta-8, including New
York, Connecticut, Colorado, Washington, and
Vermont.  Meanwhile, six other states, including Michigan
and Illinois, are considering legislative bans. New York recently
updated their draft regulations for the manufacturing, processing
and sale of “cannabinoid hemp” products
(i.e.  CBD) – which have yet to go into effect
– to prohibit processors from using “synthetic
cannabinoids or Delta-8-THC created through isomerization, in the
extraction or manufacturing of any cannabinoid hemp
products.”  In short, New York appears poised to
close the loophole that allowed Delta-8 to escape regulatory
oversight for years.
 
With states continuing to ban or restrict the production and sale
of Delta-8, it is likely that federal regulators will have to
specifically address the topic in the near future to clear up the
current confusion.  In the meantime, it will fall to the
states to decide when and how Delta-8 can be sold (if at
all).  Be sure to check out our That’s Just Your
Opinion Man section below for an explanation of why that’s so
important to the cannabis industry as a whole. 

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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