Over the past several years, the laws governing medical and recreational use of cannabis have gone through a significant transformation.  Since 2012, fifteen states and the District of Columbia have legalized recreational use of marijuana.  Still, marijuana remains illegal at the federal level and in the majority of the states.  But what if there were a product that provided the same high, was derived from the same species of plant, and is completely legal? Or is it legal?  Welcome to the world of Delta-8 THC.

Delta-8 THC is a close cousin – maybe even sibling – of Delta-9 THC, the active ingredient in illegal cannabis.  Despite their similarities, Delta-8 THC is less potent and is derived from hemp rather than cannabis.  Hemp and cannabis are actually the same plant; the difference being that hemp is marijuana with levels of Delta-9 THC below 0.3%.  Hemp has been used for centuries to create products such as paper, clothing, and rope.  Many viewed hemp as a safe alternative to cannabis because hemp could not get a person high.  However, entrepreneurs in the hemp, CBD, and cannabis industries have found what they believe is a loophole that might allow for the legal sale of a hemp byproduct that can provide a high that some say is similar to cannabis.

Delta-8 is less potent than its cousin Delta-9, and it does not occur naturally in hemp in high enough concentrations to provide a high to its users.  However, if concentrated and taken in large enough doses, Delta-8 can provide a high similar to Delta-9.  Recognizing this, researchers developed methods to distill the Delta-8 in hemp plants and produce products with the concentrated Delta-8 THC.  Those who support Delta-8 argue that this substance is derived from hemp rather than cannabis, so the products are perfectly legal to sell.  But how can a product derived from the marijuana plant that gets its users high be legal?  Enter the 2018 Farm Bill.

Among the many provisions of the far-reaching Farm Bill passed in 2018 was a provision that legalized the production and sale of “all derivates, extracts, cannabinoids, isomers, acids, salts, and salts of isomers” derived from the hemp plant.  Whether it is derived or extracted from hemp, distributors of Delta-8 products argue that the Farm Bill authorizes the sale of their products.  As an arguably legal alternative to cannabis, merchants and consumers alike have jumped on the bandwagon. So popular is the product that it has begun to pop up in vape shops, CBD stores, and even convenience stores.  Some producers of Delta-8 products have begun to bring in millions of dollars in revenue a year.  But there is one big problem: The Drug Enforcement Administration appears to be on a different page.

The DEA treats Delta-8 THC as a controlled substance alongside Delta-9 THC.  And recognizing the “loophole” that many sought to exploit, the DEA issued an interim final rule in August 2020 stating that the 2018 Farm Bill did not legalize synthetically derived THC.  Proponents argue that Delta-8 is naturally occurring and is not synthetic like the product Spice.  However, Delta-8 does not occur naturally in the hemp plant in the same concentrations that exist in Delta-8 products being sold in the market, so many consider the distillation process to be synthetic.  Under the language of the Farm Bill, some argue that Delta-8 is legal to sell.  However, given this ambiguity, which side is correct about whether Delta-8 can be sold legally?  That remains to be seen.  What is clear, however, is that any company dealing in Delta-8 products runs the risk of facing legal action by both federal and state prosecutors.

The attorneys at Chilivis Grubman are actively representing retail clients on this issue.  If you need assistance, please contact us today.