When most people talk about THC they are referring to delta 9 THC, the most abundant psychoactive cannabinoid in the cannabis plant. But there are others as well.
Delta 8 THC is also found naturally in cannabis, but in much smaller quantities. All that distinguishes delta 8 THC (D8) from delta 9 THC (D9) is the location of a double bond along each cannabinoid’s chain of carbon atoms. This change in location means D8 and D9 bind to the receptors in the body’s endocannabinoid system in a slightly different way, and the consequence of this is that D8 produces a mellower high.
Few paid much notice to D8 prior to the passage of the 2018 Farm Bill, which federally legalized hemp and therefore opened up new avenues of research into the hundred or more cannabinoids in the hemp plant.
This in turn led to a surge of interest in D8, which is now considered the fastest growing sector of the hemp industry, with sales topping $10 million last year.
Users have been drawn to D8’s less potent effects, which lie somewhere in between CBD and standard THC. Many D8 users also claim it has less of the negative side-effects often associated with D9 THC, such as anxiety and paranoia.
Another of D8’s selling points is that it’s federally legal, or at least that’s what its vendors claim. It’s true that delta 8 THC is not explicitly prohibited under federal law. The 2018 Farm Bill permits the use of hemp-derived products, so long as it contains less than 0.3 percent delta 9 THC.
In response to D8’s increased popularity, however, the Drug Enforcement Agency (DEA) issued an interim rule regarding the 2018 Farm Bill which decreed that “for synthetically derived tetrahydrocannabinols, the concentration of Δ9-THC is not a determining factor in whether the material is a controlled substance. All synthetically derived tetrahydrocannabinols remain Schedule I controlled substances.”
This raises the question, is delta 8 THC a synthetically derived form of THC?
The answer isn’t so clear since it is a naturally occurring compound made, typically, by converting CBD. But to obtain a usable amount requires synthetic chemical reactions using harsh acids. Without a clear judicial position or more explicitly worded legal texts, delta 8 THC will remain in a legal gray area.
The ambiguity over D8’s legal status hasn’t stopped vendors from selling it but neither has it stopped state lawmakers moving to regulate or prohibit it in their jurisdictions, often in states where recreational marijuana is legal.
The reasons cited for this, other than D8’s likely negative impact on regulated adult-use cannabis markets, include concerns over the extraction and conversion process for the cannabinoid. Before it can be safely consumed, the final product must be purged of the impurities needed to catalyze the reaction. Since there’s no regulatory body ensuring the final product is safe, it’s left to vendors to assure customers in the form of third-party laboratory tests that confirm or deny the presence of dangerous toxins. And not all vendors can be relied upon to provide this.
As of September 2021, 15 states have explicitly prohibited delta 8 THC. These are:
- New York
- North Dakota
- Rhode Island
Connecticut, Michigan and Nevada have instead taken steps to regulate delta 8 THC in the same way as recreational marijuana.
Connecticut lawmakers amended the state’s recently enacted marijuana legalization bill to allow for legal, regulated sales of delta 8 THC and other THC isomers at state-licensed cannabis retailers.
Michigan lawmakers also moved to only allow for the sale of D8 and other THC isomers at licensed marijuana dispensaries, effective from October 1, 2021.
In much the same way, Nevada lawmakers recently added D8 to its definition of THC, meaning it can only be sold by licensed cannabis retailers.
The two states where delta 8 THC’s legal status is murkiest are Kentucky and Nebraska. Both consider all tetrahydrocannabinols as controlled substances under state law, yet D8 is widely available and there have been few reported issues with authorities so far.
Lawmakers in Texas recently tried to ban delta 8 THC under two separate bills but both efforts failed, while Alabama lawmakers attempted to introduce an amendment that would have prohibited D8 but this was later removed.
This leaves 30 states where delta 8 THC is fully legal, at least for now.
- New Hampshire
- New Jersey
- New Mexico
- North Carolina
- South Carolina
- South Dakota
- West Virginia
- Washington D.C