Attitudes to cannabis products in the country are changing. In many states, it is legal to buy marijuana for medical use, and some states also allow recreational use of weed.

It’s not always simple, though. There are so many variations in the laws regarding what you can own, who can legally buy marijuana, and how much you can buy. Plus, variations in the products are causing more confusion. For instance, in many states CBD products are legal because of their low THC content, but other cannabis-derived products are outlawed.

Another complication is the fact that there are different properties within different cannabis products. One of the variations is the type of THC, mainly Delta-9 and Delta-8 THC, which is causing some controversy. The legal stance on cannabis products containing this type of THC are a matter of some debate. In short, for the question ‘Is Delta-8 THC Legal?‘ there is no simple yes or no answer.

What is Delta-8 THC?

Let’s start with the the National Center for Biological Information (NCBI) describes delta-8 THC as follows: “An analogue of tetrahydrocannabinol (THC) with antiemetic, anxiolytic, appetite-stimulating, analgesic, and neuroprotective properties.” But what exactly does “analogue of THC” mean?

Just like D9, Delta 8 THC (tetrahydrocannabinol) is a naturally occurring, minor cannabinoid found in the cannabis plant. Unlike Delta 9 THC, which is the most abundant compound in the cannabis plant, Delta 8 is only found in trace amounts. Delta 8 is not even produced by the enzymes in cannabis, rather, it is created when Delta 9 THC oxidizes and slowly degrades into Delta 8. Further degradation of Delta 9 would create the cannabinoid CBN (cannabinol).  

The main difference between Delta 8 and Delta 9 THC, structurally all comes down to one molecule, which can make a huge difference in the world of chemistry. As the name implies, Delta 8 THC has a molecular bond on the 8th carbon chain, whereas Delta 9 has this bond on the 9th chain.

As with other tetrahydrocannabinols, Delta 8 THC is a partial agonist for both the CB1 and CB2 receptors, meaning there are effects to be felt in numerous different parts of the body, despite having weaker psychoactive potency.

Is Delta-8 THC legal federally?

So, why is there so much debate? How come delta 8 could be legal federally? 

The 2018 farm bill legalized the production of hemp, and everything that is in the anatomy and genetic makeup of hemp, other than delta 9. If hemp has the delta 9 THC within then this must be below 0.3%. So, in theory, delta 8 THC is not covered by this federal bill.

Some people think this is effectively a legal loophole.

Like most cannabis laws, there is a lot of variation from state to state, so you need to check the local laws on the use of the substance.

The reason so many people are using this cannabinoid is the fact that it is psychoactive. The whole point of capping the content of THC content allowed in marijuana is to avoid this effect.

This has led to a variety of different impacts on the industry, too. The prices of delta 8 products seem to have gone up significantly as a result.

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

It looks like the DEA could be on the brink of some changes. The “Implementation of the Agricultural Improvement Act of 2018” aims to outlaw THC that is synthesized from CBD which has come from hemp.

It’s currently only really legal because of a legal inconsistency, but most tetrahydrocannabinols are scheduled for one drug. This means that the bill from the DEA will aim to impact upon the legalities of the substance.

If you read the 2018 Farm Bill, it seems like delta 8 is not prohibited if it has originated in hemp rather than THC-high marijuana. The DEA has made things a bit more complex, and done very little to change the gray area we’re currently in.

In 2020 the DEA said that all products that exceed the 0.3% threshold of delta 9 are scheduled one, including products that have been processed to increase this potency. If you’re processing hemp and the delta 9 ends up being a lot more than 0.3%, this could make the product illegal.

Vitally, the law also says that synthesized tetrahydrocannabinols are controlled, whether or not the delta 9 content increases above the threshold.

The way that delta 8 is usually produced means that there is yet another gray area on whether or not the DEA’s rulings make this illegal, regardless of the THC content.

Attorneys are still debating about this, and it is very unlikely that there would be a lawsuit based on what is effectively a technicality. Plus, it isn’t totally sure that the DEA really has the capability to make this judgement. 

There are a lot of things that are pretty unclear about the substance. At the moment, it is fair to say that it is not likely that anyone would be prosecuted for possessing or consuming it, but this is not something that anyone can totally guarantee.

The 2018 Farm Bill was certainly put in place to try and add more regulations to THC, and who knows what changes might be made in the future.

In early 2021, the USDA published its “ hemp rule” which describes the hemp production regulations that they are proposing. It is called the “Establishment of a Domestic Hemp Production Program” and has some important distinctions. The delta 8 and delta 9 content must be considered under one THC measurement. It must also be measured once the product has been heated to activate it.

The rules were published in the register shortly before the president Biden administration came into the White House. This doesn’t mean it automatically takes effect. The current administration will need to review these and rules don’t come into effect until later in the year.

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

Individual state law may make the laws on THC even more confused, and delta 8 THC is no different.

Whatever the federal law states, each of the states of the US has its own set of laws relating to the use of delta 8 THC and other cannabis and hemp products. How it is regulated can get confusing, as can intrastate transfers. Can delta 8 products be transferred between one state and another legally?

Oregon’s laws specify total THC content rather than being specific about delta-8 or delta-9. Whatever type of THC, the content has to be under 0.3%.

In Oregon, it seems that THC that comes from hemp is allowed, just as long as it complies with the rules outlined by the Department of Agriculture for Oregon.

If THC content does exceed 0.3%, regardless of whether this is through Delta-8 THC or Delta-9, whoever is selling it must be licensed to sell in a recreational way. Recreational marijuana is legal in the state of Oregon, but there are still some rules and regulations. Sellers have to be licensed by the Oregon Liquor Control Commission.

Unfortunately, it remains clear that the hemp and marijuana industries are still going through a lot of changes and transitions regarding the law. This means that there are a lot of different outlooks and potentially even legal debates. The way the substance has been processed seems to be a big part of any of the legal debate.

In the eyes of the law, there are many different things that could come into consideration if you are producing or consuming delta 8. If you are involved in the production or sale, legal advice is always a good idea, and allows you to take state-specific laws into account.

Predictions for The Future

It seems that there is a real plan to come down hard on the use of delta 8 THC, especially in the locations in the US where cannabis is illegal. The same could have been said for other types of cannabis, and even CBD products.

If you went back in time 20 years, not many people would have predicted that weed would be legal in so much of the USA by this point, but so many states are waking up to the benefits of the laws changing, and putting this into their own laws. 

Who’s to say that delta 8 won’t follow a similar path? The impacts of delta 8 are slightly different from delta 9, and there could be a big shift in the attitudes people have towards it. People who were staunchly against any cannabis products a few years ago might even take CBD products.

Cannabis has culturally been important for a number of years, and the attitudes seem to be shifting. Canada has legalized cannabis. However, in the US, there are a few more complexities due to state law. If you live in one of the states where THC content isn’t so much of an issue, it is possible that the legal outlooks on delta 8 won’t impact upon you much. However, if you are using a loophole to consume THC in the form of delta 8 then the legal proceedings this year might be something to keep a close eye on, as the Biden administration could change rules to encompass THC content of any type.