Delta 8 THC has a scary name due to everything we’ve been trained to think over the past 90 years regarding Delta 9 THC, but Delta 8 THC is federally legal and legal in most states in the USA thanks to H.R. 2: The Agricultural Improvement Act of 2018, also known as the 2018 Farm Bill.
The 2018 Farm Bill specifically made all derivatives, isomers, and cannabinoids in hemp legal, provided the final product has less than 0.3% Delta 9 THC. For reference, delta 8 THC is an isomer of CBD, a derivative of hemp and CBD, a cannabinoid found in hemp, and is ultimately contained in our extracts with less than 0.3% Delta 9 THC.
We often get asked about the Federal Analogue Act, which is part of the Controlled Substances Act, because Delta 8 THC is listed. This is where the 2018 Farm Bill is especially helpful, as it also includes an amendment to the Controlled Substances Act, explicitly removing all tetrahydrocannabinols found in hemp.
The 2018 Farm Bill defines lawful “hemp” (7 U.S.C. § 1639o(1)) and distinguishes it from illegal marijuana. Hemp is not a controlled substance under the CSA. (21 USC § 802(16)(B): “The term “marihuana” does not include— (i) hemp, as defined in section 1639o of title 7.”) Importantly, under the Farm Bill, hemp-derived “cannabinoids”, “derivatives”, “extracts”, and “isomers” are themselves “hemp” and thus not controlled substances. In other words, from a legal standpoint they are all “hemp” as defined in the Farm Bill. Δ8THC is a “cannabinoid” and is not a controlled substance when derived from hemp, regardless of its concentration.
Δ8THC DERIVED FROM CBD IS NOT A CONTROLLED SUBSTANCE
Although it is clear that Δ8THC which is naturally expressed in the hemp plant is not a controlled substance, producing and marketing it currently presents a unique legal issue: what is the legal status of Δ8THC that is derived from cannabidiol (CBD) or some other hemp-derived cannabinoid? This issue is important because most Δ8THC on the market is a derivative of CBD. Current hemp cultivars do not express Δ8THC in sufficient concentrations or quantities to be economically viable to extract it for commercial purposes. However, converting CBD into Δ8THC can be profitable under the right circumstances. (Note: For purposes of this article all references to “CBD” are to CBD derived from hemp.) CBD is cheap and abundant, and most methods of converting it to Δ8THC are not cost-prohibitive. Additionally, the demand for Δ8THC appears to be rising dramatically relative to its current supply.
In order to answer the question of whether Δ8THC derived from CBD is lawful, we must determine whether this form of Δ8THC meets the definition of a hemp derivative under the Farm Bill. This is a two-part issue. First, as discussed above, the Farm Bill’s definition of “hemp” includes all of its cannabinoids. This necessarily includes CBD. In other words, a hemp plant and CBD derived from a hemp plant are both “hemp” under the Farm Bill. The statute does not distinguish between a hemp plant and its cannabinoids, extracts, derivatives, etcetera. From a legal standpoint, all of these things are “hemp”. A derivative of CBD is by definition a derivative of “hemp” and thus not a controlled substance. This brings us to our second issue, whether Δ8THC produced from CBD is a “derivative” of CBD. For the reasons discussed below, the answer is “yes”.
The Chemicool Dictionary defines a derivative as “a compound that can be imagined to arise or actually be synthesized from a parent compound by replacement of one atom with another atom or group of atoms.” Wikipedia defines a chemical derivative as “a compound that is derived from a similar compound by a chemical reaction.”
All of the standard operating procedures (SOPs) I have reviewed for converting CBD to Δ8THC describe a chemical reaction initiated by a catalyst in which the CBD is converted to Δ8THC and other minor cannabinoids and compounds. In fact, the US government holds a patent for converting CBD to Δ8THC. (“Conversion of cbd to delta8-thc and delta9-thc”, US Patent No. US20040143126A1.) Additionally, Δ8THC does not degrade, oxidize, or otherwise convert to Δ9THC by the mere application of heat.
Based on the most commonly used processes for producing Δ8THC from CBD, including the US government patented SOP, Δ8THC “arises from a parent compound” (i.e., CBD) through a true “chemical reaction” (i.e., not just a heat-induced transformation or degradation). For this reason, Δ8THC meets the definition of a “derivative” of CBD under the above definitions.
Since the statutory definition of “hemp” includes “cannabinoids” such as CBD, and “derivatives” of hemp have been removed from the CSA, Δ8THC derived from CBD falls within the statutory definition of “hemp” and is not a controlled substance. This conclusion follows the general rule, adopted in the Farm Bill, that the source of a cannabinoid determines its legal status. When a cannabinoid is derived from marijuana it is a controlled substance; however, when it is derived from hemp it is not a controlled substance.
Δ8THC FROM HEMP IS NOT A CONTROLLED SUBSTANCE UNDER THE FEDERAL ANALOGUE ACT
When discussing Δ8THC I am often asked, “What about the Analogue Act?” My response is that Δ8THC from hemp is not a controlled substance under the federal Analogue Act (AA). (21 USC § 813) The AA provides for any chemical that is “substantially similar” to a controlled substance listed in Schedule I or II of the CSA, and which has a “stimulant, depressant, or hallucinogenic effect on the central nervous system (CNS) that is substantially similar to or greater than” the controlled substance, to be treated as if it were listed in Schedule I when intended for human consumption. There are several reasons that hemp-derived Δ8THC is not a controlled substance under the AA.
First, the CSA expressly provides that “tetrahydrocannabinols in hemp” are not controlled substances. (21 USC § 812(c)(17)) This specificity in the CSA as to THC in hemp overrides any contrary general provisions in the AA. Second, the effect that Δ8THC has on the CNS is not substantially similar to the effects of Δ9THC, a Schedule I controlled substance. Its effects are much less potent. (See, eg, “Delta‐8‐ and delta‐9‐tetrahydrocannabinol; Comparison in man by oral and intravenous administration”, by Leo E. Hollister M.D. and H. K. Gillespie B.A., Volume 14, Issue 3 of Clinical Pharmacology and Therapeutics, 1973, which found that the potency of Δ8THC relative to Δ9THC is two-thirds (2/3).) Third, hemp has been removed from the CSA. As discussed above, hemp-derived Δ8THC meets the legal definition of “hemp” under the Farm Bill. Legally speaking, it is hemp and is not a controlled substance. For these reasons, Δ8THC from hemp is not a controlled substance under the AA.
More information about Delta-8 THC can be found at CannaBusiness.Law
THIS ARTICLE DOES NOT CONSTITUTE LEGAL ADVICE AND SHOULD NOT BE USED AS A SUBSTITUTE FOR A CONSULTATION WITH A COMPETENT ATTORNEY. NO ATTORNEY-CLIENT RELATIONSHIP IS CREATED BY VIRTUE OF READING THIS ARTICLE, WHICH IS WRITTEN SOLELY TO DESCRIBE A NOVEL LEGAL THEORY.