Delta-8 THC has become one of the most popular cannabinoids used in hemp products over the last three years.
We’ve talked about it before and it feels like every couple of months there’s a new letter from the DEA or a new article about something somebody heard from the DEA, and we get into a round of discussion around eight and it’s legalities all over again.
So in that in that vein, here’s a little refresher on debate and the legalities around this popular cannabinoid.
Hi, I’m Morgan Davis. I’m a cannabis attorney in Raleigh, North Carolina. Let’s talk about how to keep your business protected and thriving. What is Delta eight? It’s a different cannabinoid from Delta nine. Delta eight, THC. It is a THC isomer Delta eight tetrahydrocannabinol is a naturally occurring chemical compound that’s found in very small traces in him and cannabis.
Its popularity comes from the fact a little bit of history on it comes from the fact that, well, its popularity right now comes from the fact that it’s very cheap in terms of all other cannabinoids out there. It’s cheap to make, cheap to find, easy to find. And easy to incorporate in most intoxicating hemp products. How did it become so popular?
So a couple of years ago, CBD, when 2018 Farm Bill passed the CBD is like the hottest thing around.
verybody has wants to make a CBD product and at the time everybody was looking at the next novel. What’s the next novel? Cannabinoid? Is it going to be CBN for Sleep? Is it going to be CBG? You know, what’s it going to be?
But what happened around the same time that this sort of everybody’s wondering what the next iteration is going to be and the CBD market tanked. There was so much of it in the market that the price was just in the floor. So there were a bunch of people surplus. They needed something to do with it. Somebody came up with a way to convert CBD to Delta eight, which is a legal federal farm bill.
Legal, arguably. We’re going to get that to a minute. But at the time, a a farm bill compliant, intoxicating cannabinoid comes in at under point 3%, Delta nine THC concentration, but still gives you that feeling of getting high. So they started converting the CBD, isolate that they had a surplus of in mass into delta eight and selling it and the market went nuts.
And now these products are everywhere and they’ve taken that process and they’ve applied it over and over and over again.
And now we have Delta eight, Delta seven, Delta ten, HHC, THC, CP, you know, and the lists go on and on and on, and all of them are a majority of them are made kind of in the same process.
So it’s like, well, what that process is, How is Delta eight made you take your CBD, isolate you, dissolve it into a solvent of some kind, think hemp chain or some non-polar organic solvent. Again, if you don’t understand those words, I don’t either. I’m not a chemist. I just think solvent. All right. You mix the solvent with acid and you stir it.
Then you wash and dry this new thing that you’ve come up with, right? This new mixture that you come up with, you wash and dry it using another chemical solution, and then you just it. And what should have happened is that the CBD will have degraded to Delta eight, Delta eight can be found in the hemp and cannabis plants in very small amounts as part of the natural degradation process that occurs in the plant.
So essentially what’s happening is people take CBD isolate and they are creating the same process that happens in the plant, in a lab to create a massive amount of Delta eight, which you can’t naturally extract in such large amounts. So that’s how we make it. What has happened since it became so popular is the question then became what is the stuff?
Is it legal? Is it really farm bill compliant?
In the beginning, the answer we all thought was or a lot of people thought some would say they never did. Who knows? It doesn’t matter. A lot of us thought yes, because the farm bill is very clear. If it’s if it’s less than 0.3 percent, Delta nine, THC 4.3% or less, then it is legally compliant.
It is hemp and therefore it is exempted from the Controlled Substances Act. The DEA says not so fast. The DEA in the past 12 months has tilted its head. They have not issued any official opinion on this, but has tilted its head in several communications, both publicly and privately, that they believe Delta eight is in fact a synthetic THC created in a synthetic process, and therefore it is still a schedule one controlled substance, meaning it’s as illegal as marijuana.
Now, obviously, if that’s the case, that’s a huge concern. Some states under that analysis have banned Delta eight. In fact, at the moment, I think 21 states have either banned it or heavily restricted it. Other states are embracing it and regulating it like they do all other intoxicating cannabinoid products, creating a space for it, but creating safeguards around it. The DEA and we’re all holding our breath to figure out where it’s ultimately going to fall When it comes to Delta eight has been, I would say, historically inconsistent in their position.
We have a letter from 2021 issued by the DEA that specifically calls DHS illegal as a synthetic THC. We have another letter from the DEA in 2021 that says as long as it falls under point 3%, Delta nine, THC, it’s legal under the farm bill. There’s a 2021 town hall where a DEA representative spoke, was asked the specific question and said, Yeah, the only thing that matters is that it comes in under the farm bill limit for Delta nine THC.
If it does, then it’s hemp and it’s exempted. Okay. But this year, as we’ve discussed, there have been several comments made that indicate they no longer believe that and that more consistently they believe that D8 is a synthetic. Personally, I think this is a big divergence from the historical analysis of the DEA on what is synthetic and what is not a synthetic.
They don’t really even adequately define that. Additionally, the farm bill is very specific. It says derivatives, isomers, acids, salts of acids. I mean, it goes into great detail to exempt every what in my opinion, I believe, and not a chemist, but what looks like every possible thing you could pull out of hemp, any kind of derivative you could pull out of hemp is exempted as long as it complies with the Delta nine concentration limit.
But my opinion and everybody else in the industry at industry’s opinion is just that. It’s an opinion and it’s a guess at where the DEA falls or where they should fall. And the truth of the matter is, at the end of the day, the DEA gets the last word. Their authority on what is a controlled substance and what is not a controlled substance is it’s their authority, it’s their decision to make.
And the only way to challenge that is in court.
Now, there have been some lawsuits filed. Texas has a has a lawsuit citing a ban on Delta eight that I think has been going on now for like three years. Arkansas recently had a lawsuit filed by a bunch of hemp companies who were fighting a Delta eight ban and I think you’re going to see more and more of these as the DEA and everybody else fails to make a decision.
Because when you have 21 states that are heavily restricting it or banning it and you’ve got a bunch of other states that are allowing it and regulating it, what you end up with is two very different markets and then you have states that say nothing about it. And so it’s everywhere and there are no standards for it. So if you’re a company with a DEA product trying to figure out where to sell your product, that’s difficult until someone makes a call.
The DEA or a court makes a specific call on what is this synthetic, what is it derivative? This conversation will continue to happen and we will continue to not have a clear answer for the hemp industry that creates a need for constant vigilance and constant monitoring of regulations as they change at both the state and the federal level, which, Wolf, talk about a bear of a job.
But that’s what I do. I help clients maintain that vigilance and develop an internal process for compliance that allows them to accommodate not just what’s happening today, but maybe what’s happening tomorrow. So if you need help wrangling that bear, give me a call.