Is Delta-8 THC Legal?

If you’ve recently stopped by the CBD store down the street or visited one of the many websites selling CBD online, you may have seen something odd – right alongside the CBD oils and tinctures, CBD gummies, and vape juice.

Delta-8-THC.

That leads to a lot of questions.

First of all, what’s THC doing in a CBD store? Isn’t that only supposed to be sold in a marijuana dispensary? Second, what is Delta-8-THC? Is it just a cleverly named CBD brand? Is it synthetic weed? What’s with the “Delta-8?” And most importantly: is this really legal?

You have questions. We have answers.

Delta-8-THC: The Brief FAQ

Let’s start with the simple answers.

Delta-8-THC, or Delta-8 as it’s commonly known, is not a form of CBD. And Delta-8 is a product, not a brand name. Delta-8-THC is a form of substance that’s in marijuana and gets you high. Delta-8 is not a synthetic pot, or anything else synthetic. It’s natural. (The word “synthetic” is a tricky one, though, as we’ll discuss shortly) (1). Delta-8 is sold in CBD stores and on CBD websites because – to be completely honest – there’s no law specifically prohibiting it from being sold there.

As for the “is this really legal?” question: yes, for now. But it’s complicated.

To understand the legal ins and outs, we have to first answer the most important question of all.

Exactly What Is Delta-8-THC?

As we’ve mentioned, Delta-8 is a form of THC, the psychoactive substance responsible for the mind-altering effects we all associate with marijuana – and many of the medicinal benefits of the pot.

But it’s not the “same THC” that gets you stoned when you smoke up. That’s Delta-9-THC.

Confused yet? We thought so. To clear things up, let’s dig a little deeper into exactly what’s in cannabis.

Cannabinoids

Even those with just a slight familiarity with the subject have heard the term “cannabinoids” (2). They’re the active components in cannabis, primarily responsible for the plant’s effects when its byproducts are smoked or ingested. (Cannabis also contains also other substances like terpenes and flavonoids, but that’s another subject for another day.)

There are well over 100 different cannabinoids in each of the two types of cannabis, marijuana, and hemp. (Yes, hemp is also a variety of cannabis plants.) The two that most people know about are THC and CBD, but many other cannabinoids are present in lesser amounts. Both THC and CBD are naturally found in marijuana and hemp plants; the primary difference is that there’s a lot of THC in weed and just a minuscule amount in hemp.

To be legally sold in locations other than marijuana dispensaries, CBD (scientific name: cannabidiol) cannot contain more than 0.3% THC content (3). That’s why the CBD that’s commercially available is sourced from hemp, not pot. This is an important distinction, and we’ll get back to it.

But here’s a key point to understand. Nearly everyone talks about the psychoactive THC in marijuana – but that’s not its full biological name. It’s really called Delta-9-THC (4). Delta-9 is the cannabinoid that’s prominently contained in marijuana, and nearly absent from hemp and its by-products.

One of the other cannabinoids found in both types of cannabis? Delta-8-THC.

Delta-8 Is Not Delta-9

It would be natural to confuse Delta-8-THC (usually just referred to as Delta-8) and Delta-9-THC (Delta-9). In fact, even if you use a microscope, it’s easy to confuse them.

The two cannabinoids are what are known as “analogs” – almost mirror images of each other. The only slight difference in their makeup is in the way that a couple of molecules are bonded together at the atomic level.

Why are they so similar? It’s because Delta-8 is only created when Delta-9 degrades over time; Delta-8 doesn’t occur naturally in the cannabis plant. It isn’t present at all until cannabis has begun to age and experience the effects of oxidation. That’s when Delta-9 can turn into Delta-8.

You might think that two virtually identical cannabinoids would have the same effects on the user, but that isn’t actually the case. While there’s only a slight difference in the way that Delta-9 and Delta-8 molecules are bonded, the impact of that difference is huge.

First, Delta-8 is much less psychoactive than Delta-9-THC. Second, the two cannabinoids behave differently once they enter the body.

THC interacts with the body by binding to its endocannabinoid receptors; those receptors are a crucial part of the endocannabinoid system (ECS), which regulates almost all of the body’s important functions. But because of the different structures of Delta-9 and Delta-8, they don’t interact with ECS receptors in the same way. Essentially, Delta-8 only acts on one set of receptors (CB1) instead of both sets, and the CB1 receptors block a much larger percentage of Delta-8’s psychoactive properties.

That means that the small amounts of Delta-8-THC in the pot (and CBD) don’t make people anywhere near as high as the large amounts of Delta-9 in marijuana. Delta-8 is only about 50% psychoactive, and much of that effect is blocked by the ECS receptors.

In summary, Delta-8-THC does cause some mild-altering effects after being ingested. But it’s nothing like the experience of smoking or ingesting the Delta-9-THC in weed.

(If you’re curious, the Delta-8 high is milder, smoother, not likely to interfere with mental or physical performance, and unlikely to produce anxiety or paranoia. Many users find it to be an energizing and focused high. Delta-8 also provides a number of the same medicinal benefits believed linked to Delta-9-THC.)

That’s a lot of information, and most of it doesn’t seem to answer the question “Is Delta-8-THC legal?”

You’ll soon understand, however, why all of that information is so important.

The Legality of Delta-8-THC

Existing Laws

Let’s start with one fact we all know: more than a dozen states have legalized marijuana for recreational purposes, and more than two-thirds have legalized it for medicinal purposes (5).

It’s true that the federal government still considers marijuana a Schedule 1 controlled substance, and therefore illegal for possession, sale, or use (6). In reality, though, regulation of pot sale and use has more recently been left up to the states. That means natural by-products of the marijuana plant are generally legal in states that have approved their sale and use – and illegal in states where weed is still banned.

Here’s another fact: The Farm Bill of 2018 legalized the sale of products naturally produced from the hemp plant, including CBD (7). A few states (Idaho, South Dakota, and Iowa), however, still have laws that supposedly ban CBD.

Since Delta-8-THC is naturally present in both marijuana and hemp plants, we should now have a road map to its legal status. It would seem that Delta-8 from weed plants is fully legal in states which also allow the sale and use of pot and that it’s legal in almost every state if the Delta-8 is sourced from hemp.

Seems easy, right? Sorry, but it’s about to get more complicated.

The Legal Confusion Surrounding Delta-8

We’ve mentioned that both marijuana and hemp plants contain only tiny amounts of Delta-8. It’s theoretically possible to extract that cannabinoid for sale – but that process would be so time-consuming and expensive that it’s not an economically viable approach for producers.

To come up with Delta-8 for sale, they need to find a different way to source the substance. And because cannabinoids are so chemically similar, there are two methods they can use. The Delta-9-THC in marijuana can be converted into Delta-8 via a painstaking process called “thin-film distillation”. And CBD extracted from hemp can be converted into Delta-8 via a different process known as “isomerization” (8).

In other words, the Delta-8 you see sold in dispensaries and stores is sourced from legal marijuana and hemp plants. And there’s no law that specifically bans the sale of Delta-8 in any way.

So what’s the problem?

It’s largely a semantic issue – but as we all know, “the letter of the law” is often what really matters.

The law we’re primarily concerned with herewith is the Synthetic Drug Abuse Prevention Act of 2012 (9). It was designed to ban the production of sale of synthetic drugs like bath salts and synthetic marijuana products like Spice and K2. The keyword, though, is “synthetic.”

Delta-8 is, as we’ve described, naturally contained in cannabis, and the versions that are sold to consumers are produced from natural substances extracted from cannabis. They’re natural, not synthetic.

But the process of turning Delta-9 or CBD into Delta-8-THC is often described as “synthesizing” Delta-8. That’s led some legal eagles – many of them in the government – to conclude that Delta-8 is a synthetic product that would be banned by the 2012 law.

Of course, their real concern isn’t how Delta-8 is created. It’s the fact that Delta-8 is mildly psychoactive. And despite the fact that the majority of Americans believe marijuana should be legal, there are still politicians fighting against the “legalization of drugs” – no matter what they are, where they come from, how they’re produced, or what their benefits might be.

To that end, The DEA (Drug Enforcement Administration) is in the middle of finalizing and releasing a new rule governing “synthetically-derived” THC, which would apparently close the loophole that allows the production and sale of Delta-8 (10).

No one knows whether the rule will be released as currently written, or when to expect it in final form. There’s also no way to know-how, or if, a ban on Delta-8 would be enforced.

The bottom line is that, right now, Delta-8-THC created from hemp-derived CBD is still apparently legal, and available online and in stores nationwide. But it may not be available for much longer.