What Is Delta-8 THC — and Is It Even Legal?

Delta-8 THC, a trendy new cannabinoid being touted as "marijuana lite," has managed to squeeze through a legal loophole and onto the shelves of CBD shops, head shops and convenience stores across the country. "Many people are interested in Delta-8 THC because it sounds like it has a lot of health benefits, it's stronger than CBD, it's relatively cheap, you don't have to go to a dispensary to get it and it does give you a little bit of a high — though it's weaker and usually shorter-acting than a marijuana," explains Michele Ross, PhD, a neuroscientist who studies the medical uses of cannabis and other plants, and the author of CBD Oil for Health. "But as a scientist and an educator, I really urge people to do the research before they try it," she says.

The problem is, because this product is so new, there is little research on its effects so far, and few regulations to guide or protect consumers. Here's what you need to know so far before you chew, drink or inhale it:

What exactly is Delta-8 THC?

Delta-8 THC is basically the result of a clever chemist taking a substance found in hemp — which is legal under the 2018 Farm Bill and does not produce a high — and finding a way to tweak the chemical bonds to create a closer cousin of marijuana while staying within the bounds of what the bill considers legal.

Confused? Yeah, it's confusing. Here's a little primer on plant biology that may clear it up: Hemp and marijuana are closely related plants in the cannabis family. They each contain more than 100 cannabinoids, chemicals that have various effects on the brain and body. The two most well-known cannabinoids are Delta-9 THC, which has a psychoactive effect, making you feel high (it's what makes weed weed), and CBD, which does not make you high but is often used to relieve anxiety and pain. Under legal guidelines, cannabis plants that have more than 0.3% concentration of THC are known as marijuana; plants with less than that are known as hemp.

Now, Delta-8 THC is a minor cannabinoid that is very similar chemically to both CBD and Delta-9 THC, but only occurs naturally in teeny, tiny amounts in the hemp plant, so the real growth is done in a lab. “Products that are made with Delta-8 THC have to be chemically manufactured,” explains Ross. “They take the hemp that has CBD in it and they put a chemical like acetic acid — or something much stronger and possibly even toxic — on it to turn the CBD into Delta-8 THC.” In this process, some Delta-9 THC is also created, she says, so the manufacturer then has to chemically strip out the Delta-9, which is illegal to sell at concentrations above that magical mark of 0.3%. (In a small study by the United States Cannabis Council (USCC), 15 out of 16 Delta-8 THC samples purchased across the country contained Delta-9 THC at much higher concentrations, but that's another issue.)

Once all this is done, what's left is Delta-8, which is very similar to Delta-9 THC, with just one chemical bond in a different spot. According to a report by the USCC, Delta-8 has "a lower affinity" to the CB1 cannabinoid receptors in the brain, so it is less potent for getting you high, though the USCC report says it still may have up to 75% of the psychotropic potency of Delta-9.

But here's the rub: The Delta-8 THC that's being sold in stores across the country isn't a natural product like CBD (or, for that matter, marijuana), says Ross, who describes it as a synthetic, which has the potential to contain toxins.

Once Delta-8 is created, it can be ingested in a number of ways, similar to CBD and marijuana: as a smokable hemp flower sprayed with a Delta-8 extract, in tablets that dissolve under your tongue, in vape cartridges, and in edibles such as gummies and treats. There are even cafes that sell drinks and pastries infused with Delta-8 THC.

What are Delta-8's effects?

Because there has been so little research on Delta-8, you just have to take the word of those who have tried it: "You have a lot of the therapeutic effects that we experience with CBD, like relieving stress and anxiety, but you also have a stronger, more calming effect and a powerful pain-management aspect," says Vince Sanders, the founder and president of the retail chain CBD American Shaman, which sells Delta-8 products. "The benefit is that it doesn't come with the heart palpitations and paranoia that many people experience from marijuana."

While a few small human and animal studies have indicated that CBD may control seizures, reduce anxiety and relieve pain, there are few if any studies showing that Delta-8 will have the same effect. It does, however, give you a high, though the strength of the high may vary depending on the product and the person taking it. "I tried a piece of Delta-8 caramel, and it felt just like I had taken an edible with weed in it," reports one Gen-X female user, who asked to remain anonymous. "I’m pretty sensitive to THC, and I can’t say it felt any different. I also had the munchies, just like with weed.”

Is Delta-8 legal?

The answer is a qualified yes, but not in all states, and probably not for long. The legality of Delta-8 THC is part of the murky, constantly evolving story about the legality of all types of cannabis, including CBD. As of June, 2021, marijuana is legal for medical use in 36 states and legal for adult recreational use in 18 states, including New Jersey, Connecticut, California and Illinois. Hemp-derived Delta-8 THC, however, is in a different category. The 2018 Farm Bill of 2018 opened up the production of hemp for use as CBD, as long as it has a Delta-9 THC concentration of less than 0.3% (the bill makes no mention of the concentration of Delta-8 THC, which has created this legal loophole).

One thing the Farm Bill does state, is that aside from Delta-9, any "isomers" of any part of the hemp plant are considered legal. “It just so happens a smart chemist looked at it and said, 'Wait a minute, Delta-8 is an isomer of CBD!'" says Sanders. "So we are able to convert CBD to Delta-8 completely legally.”

So, starting in 2019, companies began selling Delta-8 THC with no legal restrictions, though that is changing every day. As of this writing, 12 states have passed laws specifically banning Delta-8 THC. Other states, including ones in which marijuana is legal, such as New York, Illinois, Oregon and California, are creating regulations that any form of THC, whether Delta-8 or Delta-9, can be sold only if it is tested, verified and sold in a "regulated marketplace," according to the USCC report.

But making a complicated story even more twisty, some feel the push to ban Delta-8 in some states may be about more than health and safety: Sanders points out that many of states that have banned Delta-8 THC, including Colorado and Arizona, are ironically states where adult recreational use of marijuana is legal, and he believes the legal-marijuana industry — which has to follow strict regulations and collect sales tax — is trying to protect its turf.

Is Delta-8 safe?

While we don't know for sure exactly what positive effects Delta-8 has, we also don't know what negative effects it has. “No one has ever died from cannabis,” says Sanders. And while that statement is considered generally true (you may not die directly from the physical effects of the drug, but you can die from reckless behavior while you’re high on marijuana), it is not necessarily the THC that critics are worried about. It’s everything else that can come in an unregulated substance. “We are at the tip of the iceberg learning about all these things, we really don’t know yet what is safe and what is not,” says Ross. Even Sanders admits that we don’t know yet about any potential drug interactions or other bad side effects.

Ross is mostly concerned about what happens when Delta-8 is smoked in a vape pen. “We mostly know what happens when you ingest an edible,” she says. “But we are still learning about what happens when Delta-8 is inhaled. You don’t know what other chemicals from the manufacturing process you are inhaling and whether those could be causing headaches or nausea or other side effects.” In other words, it’s not just a natural product you’re inhaling into your lungs, but also many other unknowns, which could possibly include toxins (which is also a concern with the vaping epidemic).

The bottom line:

“People see Delta-8 everywhere, and they assume it’s just like CBD, but there is so much we don’t know,” Ross says. She recommends that if you want to try it, edibles are a safer option than smoking or vaping it; and needless to say, purchasing your Delta-8 from a reliable CBD company rather than grabbing it off the shelf of a convenience store along with a soda and a bag of chips is probably a safer call. Ross recommends that pregnant and nursing women be especially cautious (FYI: the American Pregnancy Association says the FDA strongly discourages the use of CBD, THC and marijuana during pregnancy and when breastfeeding), and that parents should explain to their curious teens that Delta-8 THC's effects on developing brains are still unknown. Ross adds that as researchers are able to observe the side effects and study the benefits over the next few years, the picture will become a lot clearer. “I think by the end of 2021 or 2022, we’re going to learn a lot more about Delta-8 THC,” she predicts.

Delta-8 THC is an isomer of Delta-9 THC, the psychoactive substance in marijuana. It is mainly manufactured from CBD derived from the hemp plant. It's available in vape pens, edibles, smokable flowers, drinks, and even pastries. Proponents describe it as a halfway point between CBD and marijuana, in that it produces a less-potent high. Critics caution that there are many unregulated and untested products on the market. It is legal — for now — in 38 states through a loophole in 2018’s Farm Bill. There is still a lot we don't know about Delta-8 THC's risks and benefits.