Thomas Howard – Principal Collateral Base

Introduction

More and more US states are taking steps to ban the psychoactive cannabinoid Delta-8 THC. This compound has a similar structure to the conventional cannabinoid Delta-9 THC and has been increasingly used in commercial cannabis products in recent months.

The cannabinoid has been banned or restricted in 14 states: Alaska, Arizona, Arkansas, Colorado, Delaware, Kentucky, Idaho, Iowa, Mississippi, Montana, Rhode Island, Utah, Vermont and Washington. In addition, the U.S. hemp Authority, which certifies hemp products, recently decided not to certify the compound because of its psychoactive properties.[1] During writing this article, Colorado and Michigan have even taken steps to restrict Delta-8 THC. By the time you read it – it could already be out of date and even more jurisdictions would have moved to quell the spread of THC’s arguably hemp isomer.

However, not all states have opted to ban the selling of goods containing the substance. For instance, Florida legislators have gone against the pattern with the creation of a regulatory framework regarding Delta-8 THC.[2]

 

What is Delta-8 THC?

Delta-8 THC is one of the four most common cannabinoids produced by the cannabis plant. The structure of this compound is very similar to that of Delta-9 THC. Delta-8 THC is a tetrahydrocannabinol isomer of THC derived from hemp extract.

THC delta-8 is considered a minor cannabinoid which is said to produce a ‘high’ comparable to that of the more widely used Delta-9 THC, but to a lesser degree. The compound can be found in very limited amounts naturally in hemp, but it can also be made from other cannabinoids, such as CBD. It is created through a process called isomerization using a ‘Lewis Acid,’ then it is purified through chromatography testing to remove unwanted Delta-9 THC until it is 2018 Farm Bill compliant. The Farm Bill also expressly mentioned that all extracts and isomers and cannabinoids in hemp other than delta-9 THC are hemp – so Congress unwittingly created its own problem as a result of its collective failure to understand the cannabis plant.

In the United States and increasingly in Europe, the compound is now found in a variety of cannabis-based products, such as vape oils and edibles. However, the legal status of Delta-8 THC is unclear as more and more states start suppressing the compound from the market.

Anyhow, it seems as though the most important question right now is whether or not Delta-8 THC can still be considered as a lawful hemp product.

 

Is Delta-8 THC legal?

To answer this question, we need to take a look at how the Agricultural Improvement Act of 2018 (2018 Farm Bill) defines 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 Delta-9 Tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis”

On 2020, the Drug Enforcement Administration (DEA) published its interim final rule regarding Delta-8 THC legality in which the entity appeared to assume that only natural cannabinoids -instead of all cannabinoids- are covered by the aforementioned definition. Which means that, according to the DEA, if Delta-8 THC is a synthetic tetrahydrocannabinol, it can’t be considered under the definition of hemp.

The DEA interim final rule muddied the water on Delta-8 THC legality. Unlike Delta-9 THC, which is expressly prohibited unless its levels are compliant with the 2018 Farm Bill’s 0.3% threshold, Delta-8 is not referenced in the Farm Bill. In fact, the definition of hemp under the 2018 Farm Bill expressly includes “all cannabinoid” other than Delta-9 THC.

 

According to the DEA’s final rule:

“(…) The AIA (2018 Farm Bill) limits tetrahydrocannabinol control (for Controlled Substance Code Number 7370). For tetrahydrocannabinol that are naturally occurring constituents of the plant material, Cannabis Sativa L., any material that contains 0.3% or less of Delta-9 THC by dry weight is not controlled, unless specifically controlled elsewhere under the CSA. Conversely, for tetrahydrocannabinol that are naturally occurring constituents of Cannabis Sativa L, any such material containing greater than 0.3% of Delta-9 THC by dry weight remains a controlled substance in Schedule I”

Consequently, according to this, not only cannabis with enough Delta-9 THC is a Schedule I drug under the Controlled Substances Act, but all tetrahydrocannabinol is, according to the Drug Code 7370.

 

The Code of Federal Regulations (21 CFR 1308) defines Tetrahydrocannabinols in the following manner:

 

“(i) Tetrahydrocannabinols. Meaning tetrahydrocannabinols naturally contained in a plant of the genus Cannabis (cannabis plant), as well as synthetic equivalents of the substances contained in the cannabis plant, or in the resinous extractives of such plant, and/or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity to those substances contained in the plant, such as the following:

 

  • 1 cis or trans tetrahydrocannabinol, and their optical isomers
  • 6 cis or trans tetrahydrocannabinol, and their optical isomers
  • 3,4 cis or trans tetrahydrocannabinol, and its optical isomers

 

(Since nomenclature of these substances is not internationally standardized, compounds of these structures, regardless of numerical designation of atomic positions covered.)

(ii) Tetrahydrocannabinols does not include any material, compound, mixture, or preparation that falls within the definition of hemp set forth in 7 U.S.C. 1639o.”

In this sense, not only did the DEA restrict the broad definition of Hemp from all cannabinoids, isomers, extracts, and derivatives, to those only “naturally” occurring, but also it goes on to call out synthetically derived THCs:

“The AIA does not impact the control status of synthetically derived tetrahydrocannabinol because the statutory definition of ‘hemp’ is limited to materials that are derived from the plant Cannabis Sativa L. For synthetically derived tetrahydrocannabinol, the concentration of Delta-9 THC is not a determining factor in whether the material is a controlled substance. All synthetically derived tetrahydrocannabinol remains Schedule I controlled substances”

So, the claim is that a naturally occurring THC is different from a synthetic one and that the 2018 Farm Bill exclusively legalized natural forms of THC, with a Delta-9 THC threshold of 0.3% on a dry weigh basis.

Most Delta-8 THC is a derivative from hemp because a “derivative” means any compound that derives from a similar compound by a chemical reaction. Black’s Law Dictionary defines a derivative as “Coming from another; taken from something preceding; secondary; that which has not its origin in itself but owes its existence to something foregoing”.

In this sense, it seems as if the major issue regarding the legality of Delta-8 THC is the compound’s status as “synthetic” or “natural”. But what does “synthetic” mean?

It’s important to note that most Delta-8 THC currently available on the market was not extracted from a hemp plant. Rather, the available Delta-8 THC was derived from CBD extracted from hemp.

This distinction raises two legal issues. First, is Delta-8 THC derived from CBD “synthetic”? Second, if Delta-8 THC derived from CBD is “synthetic”, is it an unlawful controlled substance under the CSA?

There’s currently no definition of what “synthetic” means. The closest thing we can get is the definition of “Manufacture” that the CSA provides, which unfortunately doesn’t really offer a clear answer as to what “synthetic” is.

In general, the only way to determine if Delta-8 THC derived from CBD is “synthetic” will highly depend on the definition used for that term. The fact that the term is undefined in the law is an attempt against legal security as a principle in lawmaking.

However, the compound’s status as “synthetic” or “natural” ends up being irrelevant in order to determine its legality.

To understand why Delta-8 THC’s status as “synthetic” would be irrelevant we have to take a look at the CSA’s definition of Hemp again:

“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 delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”

Now, Delta-8 THC is clearly a cannabinoid and by law, all cannabinoids extracted from hemp are considered hemp, the only exception being those with a Delta-9 THC concentration of more than 0.3% on a dry weight basis.

The thing is, Delta-8 THC doesn’t contain any Delta-9 THC concentration, as they are two different compounds, and by definition, it has to be considered hemp.

In fact, apart from Delta-9 THC, the hemp plant contains over a hundred different cannabinoids, including Delta-8 THC, which have all been excluded from the CSA.

“Tetrahydrocannabinols” are Schedule I substances, according to the CSA, “except for tetrahydrocannabinols in hemp.”

This means that Delta-8 THC can only be considered a controlled substance under the CSA if is derived from marijuana, which goes against what the DEA stated in their interim final rule.

The fact that the Congress decided to limit its exemption to only “Delta-9 THC” instead of “tetrahydrocannabinols” is a clear indicative that the intention was to exempt all other tetrahydrocannabinols extracted and derived from the isomerization of hemp. Because Congress made a clear distinction, to interpret it any other way would go against the principle of legality.

On another note, even if it were to be considered that “synthetic” THC is illegal, there’s no legal definition of what “synthetic” means. What’s even more, the Merriam Webster dictionary defines “synthetic” as “relating or involving synthesis” which can encapsulate basically all existing cannabinoids (and all other compounds made by reaction of simpler materials). Perhaps CBD is not a simpler material than Delta-8. As one is created by the isomerization of the other.

Finally, when two federal laws tend to disagree on a topic, and one is both older and more general than the other, the more recent and specific law will prevail. This principle is known as “Lex Specialis” in technical jargon.

The CSA, which contains “synthetic THC” on the list of controlled substances, is the older and more general statute in this situation. The 2018 Farm Bill, which explicitly excludes “hemp” from the CSA, is the more recent and specific rule. We anticipate that the 2022 Farm Bill will fix any issues with the THC levels and either drop the Delta-9 aspect, or define cannabinoids in either intoxicating and non-intoxicating versions.

 

Conclusion

There seems to be a consensus that Delta-8 THC is not a controlled substance under the CSA when it is derived from hemp as they do not contain Delta-9 THC concentrations that exceed 0.3% on a dry weight basis. In fact, Delta-8 THC does not contain any Delta-9 THC concentration.

However, there still is substantial risk associated with Delta-8 THC manufacturing, production, possession and selling as of now. And the landscape doesn’t seem promising for the compound, as more and more states keep banning it from their markets.

In order to navigate through the hemp industry -even more so when trying to work with Delta-8 THC- it is imperative to seek for expert’s guidance and regularly check the legal status of Delta-8 THC because state after state is updating their laws to ban it.

[1] https://www.hempgrower.com/article/states-ban-delta-8-thc-industry-organizations-weigh-in-hemp-industries-association/

[2] https://www.flsenate.gov/Session/Bill/2021/1766/Analyses/2021s01766.pre.ag.PDF

 

Thomas Howard
Cannabis Industry Lawyer
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