Is Delta 8 THC Legal?
Delta 8 THC is a cannabinoid of the tetrahydrocannabinol “family” of compounds commonly derived from the cannabis plant. It is a double bond isomer of delta 9 THC, a more well-known cannabinoid in the tetrahydrocannabinol family that is also produced by the cannabis plant. An isomer is a type of chemical analog. Specifically, an isomer is one of two or more compounds that contain the same number of atoms of the same elements but differ in structural arrangement and properties. There are thirty known THC isomers. Delta 8 and delta 9 THC differ concerning the location of a single, double bond. You can purchase hemp-derived delta 8 products by clicking this link.
The 2018 Farm Bill defines lawful “hemp” (7 USC § 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. Delta 8 is a “cannabinoid” and is not a controlled substance when derived from hemp, regardless of its concentration.
Although it is clear that delta 8 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 delta 8 THC that derives from cannabidiol (CBD) or some other hemp-derived cannabinoid? This issue is vital because most delta 8 THC on the market is a derivative of CBD. Current hemp cultivars do not express delta 8 THC in sufficient concentrations or quantities to be economically viable to extract it for commercial purposes. However, converting CBD into delta 8 THC 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 delta 8 THC are not cost-prohibitive. Additionally, the demand for delta 8 THC appears to be rising dramatically relative to its current supply.
To answer the question of whether delta 8 THC derived from CBD is lawful, we must determine whether this form of delta 8 THC meets the definition of a hemp derivative under the Farm Bill. First, as discussed above, the Farm Bill’s definition of “hemp” includes all of its cannabinoids. 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, and derivatives. 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. On to our second issue, whether delta 8 THC produced from CBD is a “derivative” of CBD. For the reasons discussed below, the answer is “yes.” You can purchase hemp-derived delta 8 products by clicking this link.
The Chemicool Dictionary defines a derivative as “a compound that can arise or 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 delta 8 THC describe a chemical reaction initiated by a catalyst in which the CBD converts to delta 8 THC and other minor cannabinoids and compounds. The US government holds a patent for converting CBD to delta 8 THC. (“Conversion of CBD to delta8-THC and delta9-THC”, US Patent No. US20040143126A1.) Additionally, delta 8 THC does not degrade, oxidize, or otherwise convert to delta 9 THC by the mere application of heat.
Based on the most commonly used processes for producing delta 8 THC from CBD, including the US government patented SOP, delta 8 THC “arises from a parent compound” (i.e., CBD) through an actual “chemical reaction” (i.e., not just a heat-induced transformation or degradation). For this reason, delta 8 THC meets the definition of a “derivative” of CBD under the above descriptions.
Since the statutory definition of “hemp” includes “cannabinoids” such as CBD, and “derivatives” of hemp have been removed from the CSA, delta 8 THC 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 comes from marijuana, it is a controlled substance; however, when it comes from hemp, it is not a controlled substance. (free two-day shipping for all delta 8 THC products.)
“What about the Analogue Act?” delta 8 THC 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. This chemical should be treated as if it were listed in Schedule I when intended for human consumption. There are several reasons that hemp-derived delta 8 THC is not a controlled substance under the AA.
First, the CSA expressly provides that “tetrahydrocannabinol in hemp” is 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 delta 8 THC has on the CNS is not substantially similar to the effects of delta 9 THC, a Schedule I controlled substance. Its effects are much less potent. (See, e.g., “Delta‐8‐ and delta‐9‐tetrahydrocannabinol; Comparison in man by oral and intravenous administration”, by Leo E. Hollister MD and H. K. Gillespie BA, Volume 14, Issue 3 of Clinical Pharmacology and Therapeutics, 1973, which found that the potency of delta 8 THC relative to delta 9 THC is two-thirds (2/3).) Third, hemp has been removed from the CSA As discussed above, hemp-derived delta 8 THC meets the legal definition of “hemp” under the Farm Bill. Legally speaking, it is hemp and is not a controlled substance. For these reasons, delta 8 THC from hemp is not a controlled substance under the AA.
The cannabinoid delta 8 THC is not a controlled substance under the federal CSA when derived from hemp. Additionally, I contend that delta 8 THC is not a controlled substance when derived from hemp-derived CBD. The 2018 Farm Bill’s definition of “hemp” includes “cannabinoids” and “derivatives” of hemp. This necessarily includes CBD and its derivatives, such as delta 8 THC, provided that they do not contain delta 9 THC concentrations that exceed the legal limit of 0.3% by dry weight. Finally, hemp-derived delta 8 THC is not a controlled substance under the federal AA because tetrahydrocannabinol in hemp is not a controlled substance. delta 8 THC does not affect the CNS that is substantially similar to a controlled substance, and hemp-derived delta 8 THC meets the definition of “hemp” under the Farm Bill. The 2018 Farm Bill removed hemp from the CSA. Under the Farm Bill, cannabinoids and derivatives of hemp are themselves “hemp.”You can purchase hemp-derived delta 8 products by clicking this link.
Blog Post Credit: https://cannabusiness.law/
Author: ATTORNEY ROD KIGHT REPRESENTS CANNABIS BUSINESSES THROUGHOUT THE WORLD.
- Jimmy S.