March 02, 2021 6 min read

The hemp conversation is shifting towards Delta-8-THC, which is now available to buy online and in stores across the U.S. But how did Delta-8 become legal? Is it legal everywhere? And is the new legal status of this mildly psychoactive cannabinoid truly sustainable?

If you’re excited about the widespread availability of this THC analogue, but feeling a little skeptical, we’re here to put your mind at ease.

Delta-8-THC became legal at the federal level at the same time as CBD and other hemp products, and many states have updated hemp laws to legalize Delta-8, too. Here’s how it happened:

Table of Contents
Hemp is Legal
Complications and the DEA Final Rule
How is Delta-8 Still Legal?
Will Delta-8 Remain Legal?
Is Delta-8 Legal in All 50 States?
Where to Buy Delta-8-THC Legally?
Resources

Key Takeaways

  • Delta-8-THC is a hemp derivative that was legalized under the 2018 Farm Bill. There’s some argument about whether the federal laws were meant to legalize any psychoactive material.
  • Some people argue that a new DEA rule made Delta-8-THC illegal, but that’s not the case. The rule only intended to support the changes already laid out by the 2018 Farm Bill.
  • Delta-8-THC is legal for now, but hemp laws are subject to change. This is especially true at the state level, and Delta-8-THC laws vary state by state.
  • Delta-8 is only federally considered to be legal when made from hemp, so you need to be careful where you buy Delta-8-THC products.

Delta-8-THC is Made from Hemp, and Hemp is Legal

A close up of an industrial hemp plant, the legal form of cannabis used to make Delta-8 products.

Delta-8-THC legality is a heavily debated subject wrapped in plenty of confusing red tape, and many people have opposing views on the matter. At the core of the legal confusion is the 2018 Farm Bill, which legalized hemp on a broad scale using the following definition:

If Delta-8-THC is derived from CBD, which is naturally derived from legal hemp material, then Delta-8-THC is also legal, right?

Not so fast.

Technically speaking, delta-8-THC is listed in the Controlled Substances Act as a Schedule I substance alongside delta-9-THC. However, the Hemp Farming Act of 2018 (the bill that effectively legalized hemp) includes a clause in Section 12619b that specifically addresses tetrahydrocannabinols in hemp.

The wording clearly suggests that all tetrahydrocannabinols that are derived from industrial hemp which contains less than 0.3% Delta-9-THC are specifically exempt from scheduling within the Controlled Substances Act.

Complications and the DEA Final Rule

If the hemp laws seem cut and dry, you may be disappointed to find out that there’s another catch.

In August of 2020, the DEA published amendments to the Controlled Substances Act to help further align it with the 2018 Farm Bill’s new laws. The new rules seemed to complicate things for the Delta-8 industry, but it may not be what it seems.

The published document reads that:

“This interim final rule merely conforms DEA’s regulations to the statutory amendments to the CSA that have already taken effect, and it does not add additional requirements to the regulations.”

In other words, the only purpose of these new rules is to help align the Controlled Substances Act with the rules that were already carved out by the 2018 Farm Bill.

The new rules specifically alter the definition of “Tetrahydrocannabinols” on Schedule I of the official “Schedule of Controlled Substances” (21 CFR 1308). The new definition excludes “any material, compound, mixture, or preparation that falls within the definition of hemp.”

It also includes the following revisions:

  • If a product has more than 0.3% Delta-9 THC, it is a controlled substance, regardless of the Delta-9 content in the original cannabis material or the product label.
  • The FDA has final jurisdiction over products containing cannabis and cannabis-derived compounds, despite any rules listed in the document
  • Synthetically derived THCs are all considered controlled substances, regardless of the amount of type of THC.

Many people assumed that Delta-8-THC falls into the “synthetically derived cannabinoids” category, which the DEA’s new rule clarified as Controlled Substances.

Thankfully, that may not be the case.

So, How Is Delta-8-THC Still Legal?

A model comparing the CBD molecule to the Delta-8 molecule that can be made through isomerization.

It is the opinion of many reputable law advisory groups that the isomerization process used to create Delta-8 does not fit the DEA’s description for a “synthetically-derived” cannabinoid, rendering the compound legally so long as it is sourced according to federal regulations regarding industrial hemp.

The complicated process of converting CBD into Delta-8 isn’t exactly the same as the process used to create a fully synthetic cannabinoid. Instead, it relies on a transfer of isomers, a process called isomerization, between cannabinoids.

To put it simply, synthetic cannabinoids, like K2 or Spice, generally contain no cannabis material at all and are fully synthesized in a lab. Alternatively, Delta-8 is created through isomerization from natural plant materials that are legal by federal law.

In other words, Delta-8 products made from legal hemp are legal by federal law, but you should still be careful to check your local regulations regarding cannabinoid products.

Will Delta-8-THC Remain Legal?

So, Delta-8’s legal status is confirmed, but it seems to exist in a sort of “gray area.” Many people theorize that the federal government did not intend to create a legal pathway for psychoactive cannabinoids to be manufactured and sold.

There’s no way to accurately predict one way or the other, and we’ll simply have to see what the future holds for Delta-8-THC products, but there are a few things to consider.

First, Delta-8-THC much less potent than the most common form of THC. In fact, one pediatric study says that Delta-8 may be about half as potent as Delta-9-THC, the main psychoactive cannabinoid that’s illegal by federal law. For this reason, it may not be considered a “public safety threat.”

Additionally, Delta-8-THC is a naturally occurring cannabinoid found in hemp, so the laws would need to specifically carve Delta-8 out as illegal, and the federal definition of hemp would have to change.

Of course, the FDA has final say and new FDA rulings could render Delta-8-THC products illegal. Still, the FDA has yet to chime in on the hemp discussion, nor have they made any statements regarding Delta-8-THC products.

Delta-8-THC is legal now, but hemp laws are subject to change at any moment, especially at the state level.

Is Delta-8 Legal in All 50 States?

Delta-8 is currently legal by federal law, but every state has the right to dictate hemp and cannabis laws within their own jurisdiction. We’d love to say that every state has made the necessary changes to legalize Delta-8, but that isn’t quite true. Delta-8-THC has been legalized in the majority of U.S. states, however.

In order for Delta-8-THC to be legal by state law, the state’s law must meet or replicate certain conditions, including:

  • The legalization of hemp using a definition similar to the federal definition (meaning hemp includes all hemp extracts, cannabinoids, isomers, and other derivatives).
  • The removal of hemp-derived tetrahydrocannabinols from the state’s Controlled Substances Act.

Under these conditions, hemp-derived Delta-8-THC is likely legal. Read “Where is Delta-8-THC Legal?” to find out if Delta-8 is legal in your state.

Where to Buy Delta-8-THC Legally?

Although Delta-8 is legal by federal law, it’s only legal when it is derived from hemp. It’s also only legal to manufacture and sell in certain states, which means you need to be careful where you source your Delta-8-THC products.

Because the hemp market is complicated and mostly unregulated, many people prefer to buy Delta-8-THC online where they can get a better understanding of the brand and the product.

At Vida Optima, we offer a variety of legal Delta-8 products, like edibles and vaporizers, that are 100% Farm Bill Compliant. Every product is accompanied by a third-party lab test that you can easily view from each product page, so you always know exactly what you’re getting.

If you choose to buy Delta-8 in local stores, check for these same comprehensive lab tests to ensure that you’re getting the potent, legally made Delta-8-THC products you’re paying for.

Resources

  1. “H.R.2 - Agriculture Improvement Act of 2018” https://www.congress.gov/bill/115th-congress/house-bill/2/text
  2. “Implementation of the Agriculture Improvement Act of 2018” https://www.federalregister.gov/documents/2020/08/21/2020-17356/implementation-of-the-agriculture-improvement-act-of-2018
  3. “PART 1308—SCHEDULES OF CONTROLLED SUBSTANCES” https://www.govinfo.gov/content/pkg/CFR-2019-title21-vol9/pdf/CFR-2019-title21-vol9-part1308.pdf
  4. “Statement from FDA Commissioner Scott Gottlieb, M.D., on signing of the Agriculture Improvement Act and the agency’s regulation of products containing cannabis and cannabis-derived compounds” https://www.fda.gov/news-events/press-announcements/statement-fda-commissioner-scott-gottlieb-md-signing-agriculture-improvement-act-and-agencys
  5. “An efficient new cannabinoid antiemetic in pediatric oncology” http://www.druglibrary.net/olsen/HEMP/IHA/iha02210.html

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