Delta-8 THC: Legal High Loophole, or Promising New Product?

Hemp based CBD products have exploded in the last few years with the market projected to grow by billions of dollars within the next decade. But, this prevalent cannabinoid is missing something that plenty of cannabis users want: a psychoactive effect. The fact of the matter is that cannabis has been used for centuries often with the express purpose of getting high. Whether legal or illegal, plenty of users of cannabis around the world pursue the high that it provides which may make cannabinoid products like CBD undesirable for their intended use. That being said, novel cannabinoids are increasingly prevalent as studies of this incredible plant continue. One of those cannabinoids is launching itself straight into the spotlight as a psychoactive, yet federally legal compound: Delta-8 Tetrahydrocannabinol.

What is Delta-8 THC vs. Delta-9 THC?

Any regular cannabis user is familiar with THC, but may be unaware that there are more than just one THC cannabinoid. delta-9 THC is the common cannabinoid responsible for the psychoactive effects of cannabis. This particular compound is the sole reason that makes cannabis federally illegal and under the DEA’s Schedule 1 restriction. This cannabinoid is also the restricting force in the legal guidelines of the hemp industry. According to the 2018 Farm Bill, hemp products must contain less than 0.3% of delta-9 THC to be within federally approved legal guidelines. This opens the door for hemp derived products that contain any other cannabinoids including CBD, CBG, CBN, and most recently, delta-8 THC. So, what’s the difference? 

While delta-8 and delta-9 THC share a very similar molecular structure, the placement of the molecular bonds between the two molecules is what separates these two cannabinoids. What makes them similar is their affinity to bind to the CB1 and CB2 endocannabinoid receptors responsible for causing psychoactive effects. Users have reported that delta-8 THC has similar effects as delta-9 THC, but with notably less potency and fewer side-effects. 

Despite this, it is still considered a psychoactive substance akin to delta-9 THC. Though this is the sole reason for delta-9 THC’s federally illegal status, it hasn’t stopped delta-8 THC from exploding into the hemp and cannabis product market. How is this possible? 

The Delta-8 Legal Loophole

In Section 12619(b) of the Farm Bill, tetrahydrocannabinols are specifically mentioned stating that any form of product from the hemp plant with a delta-9 content of 0.3% is legal at the federal level. Because of the specific language in this section of the Farm Bill, the law can be interpreted that delta-8 THC is not explicitly stated and is therefore not illegal. This seems to be currently acceptable with a large quantity of delta-8 THC products exploding into the hemp and cannabis market within the last year. As of yet, there have been no federal regulations banning the use of delta-8 THC products, though state laws do vary in the sale and possession of this product. 

The Interim Final Rule

Perhaps the most concerning event for delta-8 thc, and the extraction industry as a whole, was the DEA’s Interim Final Rule (IFR) that went into effect August 21, 2020. As previously stated, the 2018 Farm Bill explicitly states that any hemp derived products cannot contain delta-9 thc above 0.3% without being considered a Schedule 1 drug. Though delta-8 THC is not specified in the interim final rule, the language states that any synthetically derived tetrahydrocannabinols remain under Schedule 1 classification. There is a reason why this could be potentially damaging to the production, distribution and possession of delta-8 products.

Though delta-8 THC is a naturally occurring compound found in the cannabis plant, it does not appear in a quantity high enough that hemp extraction is feasible. Because of this, producers turn to a method of converting CBD isolate into delta-8 that could be potentially argued as a “synthesis” adding delta-8 THC to the list of “synthetic tetrahydrocannabinols” as stated in the IFR. However, the IFR was legally enforceable as of August 21, and there has been no evidence from producers of slowing down their output of delta-8 THC products. Why? It goes back to the language. 

The Farm Bill clearly states hemp, including any form of hemp derived extract, is legal so long as the delta-9 THC content is below the 0.3% threshold. Therefore, if derived from hemp, delta-8 thc falls under the definition of hemp in the language of the bill whether synthesized or not. Because of this ambiguity in the language of both the 2018 Farm Bill and the 2020 IFR, it seems that delta-8 THC products fall in a grey market that makes their legality walk a tightrope. Could this change? Potentially. Has there been evidence of a DEA crackdown on delta-8 products. Not yet.

Final Thoughts

So, has delta-8 THC found a legal loophole to get users high? Somewhat. On the one hand, the production of delta-8 products has done nothing but increase within the last year despite the introduction of August’s IFR from the DEA. Federally, this cannabinoid is legal and can be produced, shipped and used in any state that does not explicitly ban it. While this may be the case currently, changes to the language of the Farm Bill could result in more stringent laws that could either restrict, or outright ban the production and use of delta-8 THC products. Only time will tell on that front. 

As far as its effects are concerned, delta-8 THC is psychoactive like delta-9 THC. However, the perceived effects are reported to be much less potent than the effects of delta 9 THC. Yes, delta-8 THC has potentially intoxicating effects, but not to the same extent as traditional cannabis based products. The choice is up to the producers and consumers at this point to run the risk of producing or using a vaguely legal product in the hemp and cannabis industry. At this point it’s anyone’s guess as to whether or not the legality of delta-8 will sway in either direction, so many are taking the opportunity to capitalize on this cannabinoid while they still can.

Jon Thompson, PhD, is a separations scientist and CEO of extraktLAB, an accredited engineering company for extraction, distillation and product formulation in the CBD, hemp and cannabis industries. 

Featured Image: The image is a picture of Delta-8 THC in distillate form being pulled from a jar. Delta 8 THC is more clear than the familiar yellow/amber color of full spectrum distillate because of the conversion process of pure CBD to Delta-8 via isomerization.

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