AUTHOR: Jack Fruth
1 February 2022 Disclaimer: With delta-8 production being novel, the number of legislatures discussing it, and the speed with which attorneys general and police can act means that this paper will be out of date quickly!
The Agriculture Improvement Act of 2018, also known as the 2018 farm bill, inadvertently yet radically changed the national cannabis market. Vocally supported by then Senate Majority Leader Mitch McConnell, it contained provisions to, for the first time, legally decouple the definitions of “marihuana” and hemp. Hemp became legally Cannabis sativa L. with less than 0.3% Δ9 tetrahydrocannabinol (delta-9) by dry weight, removing it from the Controlled Substances Act (CSA) and making it legal federally.[1] Delta-9 is the most prevalent cannabinoid and the main psychoactive compound selected for in cannabis that produces the “high.” While delta-9 is selected for in recreational cannabis production, it is only one of over 100 cannabinoids found in cannabis.[2] At the concentration of 0.3% or less, products legally deemed as hemp should not then be able to have any psychoactive properties; this was the purpose of the legislature setting the delta-9 cap in the first place.[3]
At the same time Cannabidiol (CBD) oil had radically fallen in price, with many merchants looking for new uses for their unsold stock. CBD is generally the second most prevalent cannabinol in cannabis.[4] Commercially derived from hemp, it is legal in almost every state.[5] The combination of these two factors lead to the use of an already developed but, until recently, seldom used method of converting CBD into Δ8 tetrahydrocannabinol (delta-8) through a process called isomerization.[6]
Delta-8 is a naturally occurring cannabinoid found in cannabis, another one of the over 100; it is not, however, very prevalent in hemp or cannabis, only occurring in small amounts.[7] Delta-8 is an isomer of delta-9, meaning that the molecules have the same molecular formula but different molecular structures.[8] This similarity is why it can bind to the cannabinoid receptors within the body and produce a high similar to delta-9.[9] Delta-8’s high is said to be more mild than traditional cannabis, leading some to call it “diet weed.”[10]
Commercial delta-8 products are made by converting delta-8 chemically from CBD through a straightforward and cheap process. Isomerization of CBD into delta-8 involves dissolving the CBD in some organic non-toxic solvent like hydrochloric acid, heating the mixture to 100 degrees C while stirring for several hours, then adding a base to lower the pH like baking soda, a process so easy there are video tutorials on YouTube.[11] This delta-8 oil can be used in delta-8 products such as vape pens, added to edibles, or sprayed onto smokeable hemp to create a product sold as “delta-8 flower.”[12] These products oftentimes have on their packaging a notice describing the product contained as legal under the 2018 farm bill. This easy chemical process, though, leads to both the safety and legal issues surrounding delta-8.
The process may be simple but there are also ways it can be dangerous. With no regulation federally or in most states there is no guarantee the company manufacturing the product used a non-toxic solvent; in fact, the Food and Drug Administration (FDA) has issued warnings on consuming delta-8 products[13] and a few states have banned delta-8 for this reason. The Kentucky Department of Agriculture went so far as to say that companies were using “battery acid and pool chemicals” in making delta-8.[14] There is also a potential for too many terpenes in the final product; terpenes are naturally in cannabis but in small amounts, without being properly filtered out they can make the final product toxic to consume.[15]
The legal issue is that the 2018 farm bill only made natural hemp derivatives legal, with synthetic isomers of delta-9 still on the controlled substance list. So, is delta-8 natural or synthetic? Only a few states have expressly interpreted the law to include delta-8 as synthetic, but in some of those states delta-8 is still being sold. It is a difficult question since delta-8 naturally occurs in hemp, but the delta-8 products being sold are made chemically. So, with a newly legal psychoactive form of cannabis on the market left up to states to regulate if they so desire, there have been wildly different approaches taken.
There are 26 states and the District of Columbia as well as all of the populated US territories which have adopted the 2018 farm bill language with regards to the definitions of hemp and marijuana, such that delta-8 products are legal since they contain less than the delta-9 THC cap. These states are Alabama, Arkansas, Florida, Hawaii, Illinois, Indiana, Maine, Maryland, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Virginia, West Virginia, Wisconsin, and Wyoming. This is a geographically and politically diverse group of states. As of this writing, with hemp derived THC isomers like delta-8, there is now some form of psychoactive cannabis-based product legal in 43 states and the District of Columbia.
There are three states of note among the group where delta-8 is legal: Arkansas, Minnesota, and Texas. Arkansas actually legalized delta-8, moving it off of its controlled substance list in August 2021, becoming the first state to do so.[16] Minnesota is making news right now regarding delta-8; in Minnesota it is illegal for food products to contain any THC, so edibles are illegal but still widely sold while the rest of the delta-8 products remain legal, but some want more regulation. The Minnesota Board of Pharmacies want delta-8 regulated like a drug.[17] Texas, meanwhile, has been in the national news regarding delta-8 and the ongoing lawsuits involving the Texas Department of State Health Services (DSHS) which has been trying to ban it. Texas has adopted the farm bill’s definitions making delta-8 legal, but on October 15, 2021, the DSHS sent out an online notice that delta-8 had been reclassified as a schedule 1 drug in Texas. Hometown Hero, an Austin based CBD seller, asked the court for an injunction based on lack of proper notice, which was granted. Judge Soifer also mentioned that the state had not undergone the proper rule-making requirements as laid out in Texas law. The decision was appealed all the way up to the Texas Supreme Court who also ruled in favor of Hometown Hero. So, the amendment to Texas’ CSA is not in effect, and delta-8 is, once again, legal in Texas.[18]
The rest of the states can more or less be broken down into 5 different categories: states where delta-8 products are legal but with some form of enhanced regulations; states where delta-8 is de jure legal but police officers are threatening or currently carrying out raids on stores selling delta-8 products; states where delta-8 is illegal because it is listed as a controlled substance; states where delta-8 products are, like federally, no longer a controlled substance along with hemp, but are banned for another reason; and states where de jure delta-8 is illegal but yet still widely sold.
Delta-8 Legal with Enhanced Regulations:
These states have allowed delta-8 products, but only with additional testing and/or certification from a regulatory agency within the state. This in turn has shut down delta-8 sales within the state while delta-8 products begin regulatory testing, except for Oregon.
Connecticut
Connecticut as of July 1, 2021, has legalized recreational cannabis.[19] It did not adopt the farm bill’s hemp and marijuana definitions, instead choosing to define cannabis as having a concentration of greater than 0.3% of any combination of delta-7, delta-8, delta-9, and delta-10 THCs. The combination of these laws forces delta-8 products to undergo the testing and regulation of the new Connecticut delta-9 industry. Products must be sold at a licensed dispensary, thus requiring buyers be at least 21 and eliminating gas station and smoke shop sales.[20]
Louisiana
On August 18, 2021, the Louisiana Office of Alcohol and Tobacco Control (ATC), which governs hemp, reclassified delta-8, CBD and other products produced from hemp into the category of “Consumable Hemp,” defined as a product containing any cannabinoids meant for topical use or consumption. These products are legal and regulated by the ATC; all delta-8 products prior had to be approved by the Louisiana Department of Health (LDH) but that is no longer necessary. Also on August 18, the ATC legalized delta-8 flower and edibles, but these products must be approved by the LDH.[21]
Michigan
Effective October 11, 2021, all isomers of THC including delta-8 are legally cannabis. Delta-8 is being regulated by Michigan’s Marijuana Regulatory Agency (MRA) which mandates the same testing and certification as Michigan’s other cannabis products.[22]
Oregon
Oregon is unique in their regulation of delta-8; they have combined delta-8, delta-9, other THCs, and any other artificially derived cannabinoids into the category, “Adult Use Cannabinoids,” which are all regulated together under the Oregon Liquor and Cannabis Commission (OLCC). But at this time the OLCC has not placed any further restrictions on delta-8 besides expressly setting the purchasing age at 21, but by creating a framework and assigning delta-8 to a regulatory agency Oregon has circumvented the legal quagmire other states are in with delta-8.[23]
Delta-8 Legal but Police are Threatening and/or Raiding Stores
Kentucky
Per Kentucky hemp laws, based on federal laws designed in a large part by Kentucky Senator Mitch McConnell,[24] delta-8 products containing less than 0.3% delta-9 THC are legal. However, in April of 2021 the Kentucky Department of Agriculture (KDA) distributed a letter stating that delta-8 was not legal because it is a synthetic THC, and that delta-8 was being made with toxic chemicals. Emboldened by this, some Kentucky police departments have raided multiple stores, where workers were arrested, merchandise was seized, and businesses closed. The Kentucky Hemp Association has filed an injunction against the KDA to halt the raids, and currently Delta-8 products are available in some stores in Kentucky.[25]
South Carolina
South Carolina has adopted the relevant portions of the 2018 farm bill which should make delta-8 legal,[26] however, The South Carolina Attorney General officially stated on October 4, 2021, that he feels like delta-8 is illegal on the idea that any THC which is not Delta-9 in concentrations of 0.3% or lower is illegal.[27] After this announcement Clinton Police seized $5000 of delta-8 product from a store and arrested the staff.[28] Through this delta-8 still remains, for now, for sale in the state.
Georgia
Georgia also adopted the 2018 farm bills’ definitions,[29] but multiple Atlanta area stores have been raided. Police are not always forthcoming about the different levels of THC in the products seized but police have seized delta-8 products and claimed that they exceed Georgia’s legal limit of 0.3% THC.[30] Delta-8 remains for sale throughout the state.
Delta-8 Illegal as a Controlled Substance:
Alaska
Alaska explicitly mentions “tetrahydrocannabinols” under Schedule IIIA in its controlled substances law,[31] this includes delta-8, making delta-8 products illegal in Alaska.
Delaware
Delaware defines cannabis as containing “any quality of marijuana or any tetrahydrocannabinols, their salts, isomers or salts of isomers and is not approved for use by the US Food and Drug Administration.”[32] Delta-8 falls into this broad category and thus is a controlled substance.
Idaho
Idaho classifies cannabis as any substance which contains tetrahydrocannabinols, including delta-8, making delta-8 a controlled substance. Hemp in Idaho is legal, but hemp purchased must have less than 0.3% delta-9 as per the 2018 farm bill however when the hemp product is ready for sale it must contain 0% of any THC.[33]
Iowa
Iowa lists “every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or resin, including tetrahydrocannabinols” under its definition of marijuana, and in Iowa marijuana is still a controlled substance.[34]
Kansas
Kansas law states that “[f]inal ‘hemp products’ may contain a tetrahydrocannabinol concentration of not more than 0.3%.”[35] However, delta-8 was being sold in Kansas, until January 2022, when the Kansas Surgeon General announced that delta-8 products are illegal, and he is now asking for stores to voluntarily turn over their unsold products.[36]
Montana
Even though Montana has legalized recreational cannabis, it also lists all THCs as controlled substances, specifically mentioning the isomers of delta-9.[37] Delta-8 in Montana is a controlled substance and not sold.
North Dakota
North Dakota rejected the 2018 farm bill’s definition of hemp, instead going with: “‘Hemp’ means the plant cannabis sativa L….with a total tetrahydrocannabinol concentration in an amount determined by the commissioner.”[38] This change effectively bans delta-8.
Rhode Island
Title 21 of the Rhode Island Code of Federal Regulations explicitly prohibits THC, including all delta THC isomers.[39]
Utah
Utah defines cannabis to include “every compound” within the plant, which obviously includes delta-8, making it a controlled substance under Utah law.[40]
Delta-8 is Banned
In these states delta-8 is not a controlled substance but banned for other reasons. The possibility of harmful health effects from delta-8 and its lack of regulation are mentioned by most states in this category.
California
California adopted the 2018 farm bill language,[41] but the battle for legal CBD in California waged for almost three years. Cannabis producers in the state fought hard against any other form of smokeable cannabis. With the rise of delta-8 the parties agreed that smokeable CBD would be allowed, but delta-8 would be banned, so delta-8 was made illegal as a bargaining chip for CBD.[42]
Colorado
Colorado explicitly states that Delta-8 and other THCs made from CBD do not meet the definition of “industrial hemp product” and thus are illegal and not sold.[43]
New York
New York had previously placed a temporary ban on delta-8, but that ban became permanent when in November the state’s Cannabis Control Board approved rules banning both delta-8 and other smokeable hemp. New York also specifically banned cannabinoids created through isomerization.[44]
Vermont
Vermont adopted the farm bill definitions but then specifically said that because Delta-8 is made from isomerization that makes it not “natural” and thus still illegal. Vermont has also banned the creation of delta-8 from CBD oil.[45]
Washington
Like Vermont, even though Washington adopted the 2018 farm bill,[46] it has banned the conversion of CBD into delta-8 and banned the sale of delta-8 products.[47]
Delta-8 Illegal by Law but still Widely Sold:
Arizona
Arizona’s laws are clear that all parts of the cannabis plant are controlled substances in Arizona, with special exceptions for mature sterile stalks and delta-9, carved out when Arizona legalized recreational cannabis.[48] That places delta-8 on the controlled substance list, so it should not be legal. However, delta-8 products are still sold in the state and so far, police offices and the Arizona legislature seem content to allow its continuance.[49]
Massachusetts
Massachusetts is an interesting case; it has decoupled cannabis and hemp and legalized natural hemp byproducts, but the state is adamant that delta-8 does not meet the definition of “natural” and so says that it is illegal.[50] This so far has not stopped delta-8 from being widely available, including Massachusetts based hemp stores which continue to manufacture and sell it like Boston Hemp Inc.[51]
Nevada
Nevada law is very thorough in outlawing THCs, explicitly outlawing delta-8, its optical isomers, THCs “contained in the genus Cannabis,” and uses the phrase “Since nomenclature of these substances is not internationally standardized, compounds of these structures, regardless of numerical designation of atomic positions covered” to include any future THC isomer.[52] (1-9) This, however, has not stopped companies like Fresh Bros., a Las Vegas hemp company, from selling delta-8 products both in stores and online. Their website does not mention Nevada State Law, but instead focuses on the 2018 farm bill and delta-8’s legal status federally.[53]
Some believe that there is already a valid legal argument for delta-8’s illegality under the Federal Analog Act of 1986, which made illegal any chemical which was “substantially similar” to any chemical on the controlled substances list.[54] Courts usually rely on expert testimony to conclude that the substance in question is chemically similar enough to a controlled substance, produces a similar or greater psychoactive effect, and that this was known by the owner to meet the mens rea of possession,[55] given that most cases involving the Federal Analog Act are criminal possession cases. If this rule were to be applied to delta-8 it would almost certainly lead to a ban on delta-8, since it and delta-9, the main psychoactive compound in cannabis, are isomers, and delta-8 products continue to be marketed as “diet weed.”[56] However, no such cases have yet occurred involving delta-8.
Others believe that delta-8’s legality will usher in a bigger push for national cannabis legalization,[57] but the delta-8 and recreational cannabis markets usually do not support each other. In fact, looking at the states’ laws, the states where the recreational cannabis market exists or is about to exist there is usually no legal delta-8 market. And delta-8 products are not well supported among cannabis legalization groups either. With delta-8 going unregulated at the federal level, some cannabis groups are speaking out about its availability. The National Organization for the Reform of Marijuana Laws (NORML), one of the largest pro-cannabis groups in the country, cautions the use of delta-8 products, particularly ones from gas stations, because of the lack of regulation.[58]
Delta-8 is both fascinating and legally paradoxical: a psychoactive form of THC made from hemp made federally legal and adopted by most states through passing of the 2018 farm bill, which had language to try and stop this exact outcome from happening, coming at a time where half of the country has access to some form of cannabis and half does not, making some form of cannabis now legal almost everywhere in America, even to the dismay of the cannabis industry and some cannabis interest groups. And this legal quagmire is not likely going to change anytime soon. The Drug Enforcement Administration (DEA) in a letter to the State of Alabama on September 15, 2021, reiterated delta-8’s legality, once again stating that as long as the product is derived from hemp and contains 0.3% or less delta-9 by dry weight then it meets the federal definition of hemp and is therefore not a schedule 1 controlled substance at the federal level.[59]
While not being directly cited, I wanted to thank Gleb Oleinik, who’s thorough writing on delta-8 was useful.
SOURCES
[1] 7 U.S.C. § 1639o (2018).
[2] FDA, 2021. 5 Things to Know about Delta-8 Tetrahydrocannabinol – Delta-8 THC.
[3] Crystal Sicard, 2021. Kentucky Hemp Association, Department of Agriculture spar over Delta-8 THC. Spectrum News 1.
[4] Allison Justice, 2021. Delta-8 THC: Threat or Opportunity?
[5] Peter Grinspoon, 2021. Cannabidiol (CBD)-what we know and what we don’t.
[6] Allison Justice, 2021. Delta-8 THC: Threat or Opportunity?
[7] FDA, 2021. 5 Things to Know about Delta-8 Tetrahydrocannabinol – Delta-8 THC.
[8] UCLA, 2017. Illustrated Glossary of Organic Chemistry.
[9] Michigan Marijuana Regulatory Agency, 2021. Delta-8 Information.
[10] Tom Schuba, 2021. Feds issue warnings about ‘diet weed’ as Illinois lawmakers try again to crack down on hemp derivative. Chicago Sun Times.
[11] extractLAB, 2020. No Holds Barred: How To Make Delta 8, YOUTUBE, https://www.youtube.com/watch?v=8EyQuIhFzfw&ab_channel=extraktLAB.
[12] ALTRx, 2022. Delta 8 THC.
[13] FDA, 2021. 5 Things to Know about Delta-8 Tetrahydrocannabinol – Delta-8 THC.
[14] Crystal Sicard, 2021. Kentucky Hemp Association, Department of Agriculture spar over Delta-8 THC. Spectrum News 1.
[15] NORML, 2021. New NORML Report Highlights Concerns Regarding Sale of Unregulated Delta-8 THC, Similar Products.
[16] Jessie Larson, 2021. Arkansas Legalized Delta 8 Without Fanfare.
[17] Tom Lyden, 2021. Delta 8: A legal ‘Weed Light’? Fox 9.
[18] Jacob Vaughn, 2021. ‘We Won Again’: Texas Supreme Court Leaves Delta-8 Legal For Now, but The Fight’s Not Over. Dallas Observer.
[19] Press Release, Conn. State Dep’t of Consumer Prot., Consumer Protection Announces Date for Frist Application Period for Adult-Use Cannabis Licenses (Jan. 4, 2022).
[20] Department of Consumer Protection, 2021. Department of Consumer Protection Warns Businesses That Selling THC-Containing Hemp Products Is Now Illegal.
[21] Louisiana Office of Alcohol and Tobacco Control, 2021. ATC Advisory: CBD & Consumable Hemp Legislative Update.
[22] Michigan Marijuana Regulatory Agency, 2021. Delta-8 Information.
[23] Daniel Shortt, 2021. Oregon’s New Approach to Hemp Product and Delta-8 THC.
[24] Mona Zhang, 2021. High anxiety over federal weed loophole.
[25] Crystal Sicard, 2021. Kentucky Hemp Association, Department of Agriculture spar over Delta-8 THC. Spectrum News 1.
[26] Kylie Jones, 2021. Upstate police seize Delta 8 THC products from vape shop, owner argues they’re legal.
[27] South Carolina Department of Agriculture, 2021. Hemp.
[28] Kylie Jones, 2021. Upstate police seize Delta 8 THC products from vape shop, owner argues they’re legal.
[29] GA. Code Ann. § 2-23-3(3) (2019).
[30] Mans Cornwell, 2022. Is Delta-8 Legal in Georgia?
[31] Alaska Stat. § 11.71.160(f)(3) (2019).
[32] Del. Code Ann. tit. 37 § 4714(d)(19) (2021).
[33] Idaho Code § 37-2732(e) (2021).
[34] Iowa Code § 124.101(20) (2022).
[35] Kan. Stat. Ann. § 2-3901(b)(2) (2021).
[36] Celia Llopis-Jepsen, 2022. These cannabis products sold in Kansas could get you high, and maybe arrested. npr.
[37] Mont. Code Ann. § 50-32-222(4)(ff) (2021).
[38] N.D. Cent. Code § 4.1-18.1-01. (2021).
[39] R.I. Gen. Laws § 21-28-2.08(d)(17) (2017).
[40] Utah Code Ann. § 58-37-2.(g) (West 2020).
[41] 10 Cal. Health & Safety Code § 11018.5(a) (Deering 2021).
[42] Todd Runestad, 2021. It’s official: California legalizes CBD (but not delta-8 THC).
[43] Patrick Lynch, 2021. Why Is Delta 8 Illegal in Colorado?
[44] HempToday, 2021. New York adopts final rules banning delta-8 THC, smokable hemp.
[45] State of Vermont Agency of Agriculture, Food and Markets, 2021, IS THE MANUFACTURE OF DELTA-8-THC OR ITS USE IN HEMP PRODUCTS PERMITTED UNDER THE VERMONT HEMP PROGRAM?
[46] Wash. Rev. Code. § 15.142.020(6) (2021).
[47] Enforcement Bulletin from Wash. State Liquor and Cannabis Bd. to Cannabis Industry Members on delta-8 (Sept. 8, 2021).
[48] Ariz. Rev. Stat. § 13-3401(4)(b) (2022).
[49] Ray Stern, 2021. Nobody Seems to Know If Delta 8 Is Legal in Arizona. But That Doesn’t Mean Nobody’s Selling It. Phoenix New Times.
[50] Mass. Dep‘t of Agric., Hemp in Massachusetts: FAQs (2021).
[51] Boston Hemp Inc, 2021. Boston Hemp changing the hemp industry for the better.
[52] Nev. Admin, Code § 453.510.4 (2018).
[53] Fresh Bros., 2021. D8LTA PRODUCTS.
[54] 21 U.S.C. § 813.
[55] United States v. Klecker, 228 F.Supp.2d 720, 728 (2002).
[56] Tom Schuba, 2021. Feds issue warnings about ‘diet weed’ as Illinois lawmakers try again to crack down on hemp derivative. Chicago Sun Times.
[57] Kaitlyn Sullivan, 2021. Dleta-8 THC is legal in many states, but some want to ban it. NBC News.
[58]` NORML, 2021. New NORML Report Highlights Concerns Regarding Sale of Unregulated Delta-8 THC, Similar Products.
[59] Letter from DEA to Donna C. Yeatman, Executive Secretary for the Ala. Bd. of Pharm. on delta-8 (Sept. 15, 2021).
