Delta 8 THC Legality: Is Delta 8 THC Legal?

by | Apr 17, 2021 | News

Many people ask “What are the laws regarding delta 8 THC legality? Is Delta 8 THC Legal?

D8 is a cannabis compound that has become popular because of its similarity to THC, the main compound in cannabis that gets you high, causing euphoria, happiness, sedation, symptom relief, and much more. Large amounts of THC are found in a majority of cannabis strains.

The similarities between the two cannabinoids lie in their chemical structures and their names. THC’s scientific name is delta-9-tetrahydrocannabinol, or delta-9 THC, or just delta-9. Delta-8 is short for Delta 8-tetrahydrocannabinol, or Delta 8 THC. Delta-8 THC can cause effects similar to regular delta-9 THC—but they will be much less potent. 

Delta-8 and delta-9 are both forms of THC. In common usage, when people refer to THC they are talking about delta-9 THC. (In this article, when we use the term “THC” without a modifier, we are referring to delta-9 THC.) 

Currently, the definitions of Delta 8 THC Legality are hazy. It can be extracted from either hemp or cannabis. Because of the 2018 farm bill, hemp can be legally grown and used for extractions all over the United States, making Delta 8 legal in states where delta-9 THC is illegal—sometimes. 

Nearly all Delta 8 THC Carts on the market today are manufactured from hemp-derived CBD, which makes it, in theory at least, part of a federally legal chain of origin. 

People in states where THC is illegal crave cannabis products and are now looking to Delta 8 because it may be legal in their state, even though it is less potent than regular THC. Many extractors are ramping up Delta 8 production to meet this new demand and shipping it all over the US. 

Delta 8 THC Legality

Delta 8 THC Legality

Delta 8 THC Legal vs. Delta 9: What’s the Difference?

D-8, like D-9 (regular THC), binds to the body’s endocannabinoid system, which causes you to feel high. Chemically, Delta 8 THC Distillate and delta-9 are similar in that they both have a double bond in their structures. This double bond is thought to produce the intoxicating effects that make you feel high. 

The two THCs are chemically different in the placement of the double bond. Both cannabinoids have a chain of carbon atoms, but D 8 has the double bond on the eighth carbon, whereas D-9 has it on the ninth. 

Delta-8 binds to the endocannabinoid system in a slightly different fashion because of the location of its double bond. This is what is thought to make D 8 much less potent than regular tetrahydrocannabinol. However, more research needs to be done on D 8 and how it interacts with the body.

Will Delta 8 get you High?

Delta-8 will get you stimulated, albeit not the same as D-9 THC. For those living in states where cannabis is illegal, Delta 8 THC Dabs may be a legal way to experience some THC-like effects from cannabis.

Some consumers may even prefer cannabis products that aren’t as strong as common THC, even if they can legally obtain THC products. THC can cause negative effects for some, bringing on anxiety or paranoia. D-8 may offer a smoother, milder effect.

Delta 8 THC Legality vs. CBD

Delta-8 THC has more similarities to THC (D-9) than CBD, both in its chemical structure and because it gets you high. D-8 THC binds to the body’s endocannabinoid system more like D-9 THC. CBD doesn’t bind as readily to the endocannabinoid system, making it non-intoxicating, although CBD can offer medicinal benefits for the consumer.

If you are looking for effects similar to THC but with a reduced potency, D 8 may be for you. If you seek relief from certain symptoms and don’t want to get intoxicated, you may want to try a CBD product.

How to Dose Delta 8

For most people, especially moderate or experienced consumers, D 8 will feel much weaker than regular THC. If you are new to cannabis, D8 could affect you strongly—it depends on your body chemistry. 

To give a sense of Delta 8’s potency relative to THC, D8 edible producers commonly measure and dose their gummy’s at more than twice the strength of THC gummy’s: 

  • THC gummy’s often come in 10mg gummy’s—people may take half a gummy or a full gummy for a dose, either 5mg or a full 10mg.
  • Delta-8 gummy’s often come in 25mg gummy’s—so half of one would be 12.5mg, and a full gummy is 25mg. 

In creating these standard gummy’s, producers are calculating that Delta 8 is less than half as strong as regular THC, so a 25mg D 8 gummy might equate to the effects of a 10mg THC gummy. 

Again, it’s important to note that very little research has been done on Delta 8. We don’t know much about how strong its effects are, and how it affects the body. As with any cannabis product, the chemical profile of the cannabis, your body’s chemistry, your tolerance level, your set and setting, and the amount you take all affect how you will feel. 

It’s always recommended to take a little bit at first and then wait for the onset of effects before taking more. The consumption method will affect how quickly you feel those effects. If you’re vaping Delta 8, you should feel the effects within ten minutes or less; if taking edibles, wait at least an hour or two before taking more.

Is Delta 8 THC Legal?

The short answer is yes, but it’s not quite that simple. For the purposes of this article, we will only be focusing on the United States. The 2018 farm bill legalized hemp and all derivatives, isomers, and cannabinoids in hemp provided the final product has less than 0.3% D9THC, effectively making D8-THC federally legal when derived from hemp. As per the farm bill, hemp is defined as: ‘‘SEC. 297A. DEFINITIONS. ‘‘In this subtitle: ‘‘(1) HEMP.—The term ‘hemp’ means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a D-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.

Some may say Delta-8 currently exists in a legal gray area. 

Few state laws specifically address D8 at this time and delta 8 thc legal status. Most state laws that pertain to marijuana or cannabis use language that covers marijuana, cannabis, THC, CBD, or D-9 tetrahydrocannabinol. There are 11 states where D 8 is believed to be illegal according to state law. (See list below, under “Can I get D 8 in the mail?”) 

The Federal Drug Enforcement Administration (DEA) has, in a proposed rule, indirectly classified D 8 as a Schedule I controlled substance, which would make it federally illegal. That rule is not yet final. 

D8THC is commonly sourced from hemp, not cannabis, which is why it’s currently sold in many states where cannabis is illegal. To be more specific, nearly all D 8 THC currently on the market is derived from CBD extracted from federally legal hemp. 

This can be a little confusing because hemp is, technically, a cannabis plant that contains less than 0.3%. When we talk about “cannabis,” though, we’re commonly referring to cannabis plants with tetrahydrocannabinol content of 0.3% or higher.  

The 2018 farm bill, a federal act passed by Congress, legalized hemp in the United States. That act defines hemp as: “All derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a D-9 tetrahydrocannabinol concentration of not more than 0.3 percent.” This language makes D 8 legal, because it does not contain any D-9THC. 

However, some states have chosen not to adopt this specific language of the farm bill in their own state laws, making D 8 illegal in certain states. Producers and retailers of D 8 sell only to states that have laws mirroring the farm bill’s language. Even then, some producers may only sell to certain states based on their own interpretation of a state’s laws. 

Additionally, in August 2020, the DEA released an Interim Final Rule (IFR), on Delta 8 Legality, a document meant to update and confirm the differences between hemp and cannabis. That interim rule said: “All synthetically derived tetrahydrocannabinol remain Schedule I controlled substances,” which would make D 8 illegal because it is a tetrahydrocannabinol that is extracted, or synthetically derived. 

So whether the farm bill’s language stands, which outlaws plants with more than 0.3% D-9THC, or the new IFR language is adopted, which bans all tetrahydrocannabinol, will determine the fate of D 8. The DEA’s IFR is open for review until October 2021, and until then, D 8’s federal legality remains hazy

Can I get Delta 8 in the mail? What States is Delta 8 THC Allowed?

You can receive D 8 in the mail depending on which state you live in. D-8 isn’t legal in all states, and different producers may choose not to ship to certain states because of its hazy legality. Be sure to check a producer’s website to see if they ship to your state. Surprisingly, states that have legal, adult-use cannabis laws don’t always allow D 8. 

Biologic Hemp will ship Delta 8 to all states except these:

Alaska – Sec. 11.71.160.(f) Schedule IIIA. states “…any material, compound, mixture, or preparation that contains any quantity of the following substances or that contains any of its salts, isomers, whether optical, position, or geometric, or salts of isomers whenever the existence of those salts, isomers, or salts of isomers is possible within the specific chemical designation” is considered to be a Schedule IIIA substance and goes on to list tetrahydrocannabinol as one of such substances. Taking their recently relaxed stance towards marijuana into account, their ban on D8 is mildly surprising but most likely stems from similar motivations as those in other states that have legalized marijuana for adult-use, such as Colorado and Oregon, as discussed below. States that have legalized and regulated Delta 9 products desire the same for any other tetrahydrocannabinol that will be distributed on a retail level.

Arizona – Title 3 Agriculture. CH. 2, ART. 4.1 Industrial Hemp defines cannabis as marijuana, as well as “Every compound, manufacture, salt, derivative, mixture or preparation of such resin, tetrahydrocannabinol (T.H.C.), or of such plants from which the resin has not been extracted” in Section 3-311. In addition, Title 36 – Public Health and Safety, Ch.2 Section 36-2512 states that “any material, compound, mixture or preparation that contains any quantity of the following…substances and their salts, isomers and salts of isomers, unless specifically excepted or unless listed in another schedule, whenever the existence of these salts, isomers and salts of isomers is possible within the specific chemical designation (for the purposes of this paragraph, “isomer” includes the optical, position and geometric isomers):” and goes on to list cannabis, with the exception of the synthetic isomer of delta-9-tetrahydrocannabinol. This simply means that any tetrahydrocannabinol other than synthetic Delta 9 will be considered banned, including D8.

Arkansas – Under House Bill 1415, Section 1, Arkansas law states that any salts, isomers or salts of isomers of tetrahydrocannabinol are classified as a schedule VI substance. Interestingly, the bill goes on to specify a number of tetrahydrocannabinol isomers to be scheduled, detailing “synthetic substances, derivatives, or their isomers in the chemical structural classes described below in subdivisions…of this section and also specific unclassified substances in…this section. Compounds of the structures described in this subdivision…regardless of numerical designation of atomic positions, are included…The synthetic substances, derivatives, or their isomers included in this subdivision are:(A)(i) Tetrahydrocannabinol’s.”

Colorado – Colorado takes a similar approach to Arkansas by specifically defining what a tetrahydrocannabinol is in Section 25a of Title 18 Criminal Code Uniform Controlled Substances Act of 2013. “ ‘Tetrahydrocannabinol’s’ means synthetic equivalents of the substances contained in the plant, or in the resinous extractives of, cannabis, sp., or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity, such as the following: (I) ¹Cis or trans tetrahydrocannabinol, and their optical isomers; (II) 6Cis or trans tetrahydrocannabinol, and their optical isomers; (III) 3,4Cis or trans tetrahydrocannabinol, and their optical isomers.” Being that Colorado has legalized and regulated the sale of Delta-9 THC products for adult use, this ban is most likely motivated by the desire for established regulation of D8, similarly to Oregon and Alaska. In May 2021, Colorado’s Department of Public Health and Environment released a statement declaring that “chemically modifying or converting any naturally occurring cannabinoids from industrial hemp is non-compliant with the statutory definition of ‘industrial hemp product.” The statement goes on to specifically mention any process that modifies an existing cannabinoid and explicitly refers to D8.

Delaware – Under Title 16 of their Uniform Controlled Substances Act, stating that any products containing “any quantity of marijuana or any tetrahydrocannabinol, their salts, isomers or salts of isomers and is not approved for use by the US Food and Drug Administration” Delta-8 THC is not legal.

Kentucky –  On March 25, 2021, the Governor of Kentucky approved and signed House Bill 307, declaring that marijuana “means all parts of the plant Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant,” effectively outlawing all isomers of THC, including Delta-8. Furthermore, on April 19, 2021, the Kentucky Department of Agriculture sent a guidance letter to hemp license holders reiterating their position on D8 and even purports that D8 is a schedule I controlled substance under federal law.

Idaho – Idaho’s House Bill 122, section 37-2701, bans all tetrahydrocannabinol, with the exception of those occurring with hemp under .3% concentration. It then goes on to specify that “synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis, and/or synthetic substances, derivatives, and their isomers with similar chemical structure such as the following” and goes on to list various tetrahydrocannabinol. Overall, Idaho’s cannabis laws tend to be quite stringent and this aspect is not too surprising.

Iowa – With no medical marijuana program existing in Iowa, it can be expected that their legislation surrounding isomers and salts of tetrahydrocannabinol is more restrictive. Except for cannabinoids specified by rules of the board for medical purposes, all tetrahydrocannabinol, salts, isomers and synthetic equivalents are banned.

Mississippi – Similarly to other states listed in this section, Mississippi has decided to consider all isomers, synthetic substances and derivatives of tetrahydrocannabinol illegal. The legislation provides an exception for synthetic cannabinoids medications dronabinol and nabilone. Interestingly, it also provides an exception for extracts, oil and resins with a 20:1 ratio of cannabidiol:tetrahydrocannabinol, as long as they have been diluted to a concentration of 2.5mg of tetrahydrocannabinol per milliliter. Presumably, the state of Mississippi finds that such a small amount of THC is negligible.

Montana – Title 50 of the Montana Code dictates that all salts and derivatives, isomers and synthetic substances replicating tetrahydrocannabinol are considered “specific dangerous drugs” in Schedule 1. The legislation goes on to specify all cis, trans, and optical isomers of delta 1, 3, 4, 6, and 9 tetrahydrocannabinol.

New York – In May of 2021, New York amended their Title 10 (Health) of the Official Compilation of Codes, Rules, and Regulations of the State of New York, which is responsible for regulating the processing and retail sale of cannabinoid hemp. By adding Part 1005 to the regulation, they specify that hemp manufacturers may “not use synthetic cannabinoids, or Δ8-tetrahydrocannabinol or Δ10-tetrahydrocannabinol created through isomerization, in the extraction or manufacturing of any cannabinoid hemp products,” expressly prohibiting D8 that is created through isomerization. This is the most comprehensive ban that has been implemented as of yet, in as much as it addresses the specific issue of isomerization of CBD into D8 that is at hand while not simultaneously banning naturally occurring isomers of THC in products.

Rhode Island – In Section 3 of the “Uniform Controlled Substances Act,” Rhode Island defines “marijuana” as the plant itself, any resins extracted, as well as every compound, isomer, derivative and salt existing in the plant. According to this definition, D8 and all other tetrahydrocannabinol are considered controlled substances.

Vermont – In Mid-April 2021, Vermont’s Agency of Agriculture released a statement declaring the manufacture, possession and sale of D8 to be banned under state law. Despite D8 existing as a naturally occurring compound in the cannabis plant, the state’s cannabis control quality administrator, Stephanie Smith says that the reasoning behind the ban is due to it being “not naturally occurring.”  By considering D8 a “synthetic cannabinoid,” the sale of D8 would violate the state’s law banning synthetic cannabinoids in hemp.

Utah – Chapter 37 of the Utah Controlled Substances Act specifies that tetrahydrocannabinol and their synthetic equivalents, derivatives and isomers are considered controlled substances, regardless of the numerical designation of atomic positions covered. Regardless, the legislation does specify Delta-1(9), Delta 6 and Delta 3,4.

How is Delta 8 made?

Delta-8 is found in trace amounts in cannabis and hemp plants, and as hemp is legal to grow anywhere in the US and more readily available, the cannabinoid is often sourced from that. 

Commonly, CBD is extracted from hemp and refined into an isolate, and then CBD isolate is synthesized into D8. As such, D8 requires more processing and is more expensive to make than CBD, but this increased production cost is balanced out by the high demand for it.

How to Find Good, Safe D8

As D8 is relatively new to the market, it may be challenging to find products that are what they say they are and actually contain D8. When shopping for D8 products, check out a producer’s website to see if they have information on how they source and create their products.

Quality, tested products usually have a QR code or batch number on the box that allows you to look up test results on the producer’s website. Stay away from products that aren’t tested or have questionable test results, as you won’t know if they even contain d 8, and they could potentially contain harmful substances.

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