What is delta-8-THC? How is it different from delta-9-THC?

Delta-9-THC is by far the most well-known cannabinoid, but its psychoactive relative, delta-8-THC has been gaining popularity in recent years. Delta-8-THC is chemically distinguishable from delta-9-THC by only a few atomic bonds and still offers a potent high of its own. While delta-8-THC only exists naturally in fractions of a percent, companies are finding value in concentrating it from CBD to isolate its unique effects and applications. Unfortunately, because of disagreement between government bodies, the legality of this practice is unclear.

Is delta-8 THC-illegal under the federal 2018 Farm Bill and DEA rules?

If you recall, a new Farm Bill was signed into law in 2018. Widely celebrated in the cannabis industry, that legislation states that hemp and its derivatives are not prohibited under the Controlled Substances Act (CSA) as long as they do not contain more than 0.3% THC (delta-9-THC to be specific). Derivatives of cannabis exceeding the 0.3% delta-9-THC threshold remain illegal under the CSA.

Here is where the distinction is important. On the face of the 2018 Farm Bill, it appears that delta-8-THC in any quantity is not prohibited as long as the ingredient has been derived from hemp, and the product does not contain more than 0.3% delta-9-THC. Unfortunately, the DEA has complicated this analysis. In an Interim Rule dated August 21, 2020, the DEA declared that not only end-products containing more than 0.3% delta-9-THC are illegal, but all products exceeding the 0.3% threshold, including intermediary hemp (partially processed products) that contain increased potency, even if the potency is only temporary and decreased prior to sale or consumption. This creates a risk for anyone processing hemp if, at any point in the process, delta-9-THC rises above 0.3%.

Moreover, and more importantly for delta-8-THC processors, the Rule clarifies that synthetic tetrahydrocannabinols, regardless of the delta-9-THC concentration, is a controlled substance. Given the manner in which delta-8-THC is commonly processed (converted from CBD), it is possible that processed delta-8-THC is considered illegal according to the DEA interim rule even when it is derived from a product containing less than 0.3% delta-9-THC. While a debate exists among attorneys about whether anyone would actually be prosecuted under such a technicality, whether the DEA even has authority to make such a determination, or whether the 2018 Farm Bill intended to regulate only delta-9-THC or all forms of THC, processors are forced to tread on uneven legal ground.

Is delta-8-THC illegal under the Oregon state law?

And regardless of federal law, states have their own regulations in this industry. For example, in Oregon, it appears that delta-8-THC derived from hemp is allowed in intrastate transfers, at least under state law, as long as it is in compliance with Oregon Department of Agriculture. However, because Oregon’s rule uses “total THC” rather than specifying delta-8 or delta-9, the concentration limits must be less than 0.3% regardless of THC type, otherwise the seller must be licensed by the Oregon Liquor and Cannabis Commission to sell to the recreational market—a market that is still illegal under federal law. And as we all know, just because a product is produced, processed, and sold within the confines a state’s border does not mean the federal government does not have authority to regulate it. Interstate transfers, a higher enforcement priority for federal agents, are even more legally precarious.

Clearly, the hemp industry still has some legal kinks to work out, and each situation requires a careful analysis of all the facts. If you have questions about the legality of your hemp derived CBD or THC products, or other questions about cannabis law, please contact Trevor J. Cartales at Navigate Law Group for assistance.