Delta-8 tetrahydrocannabinol (delta-8 THC, or Δ8THC) surprised industry experts by jumping ahead of cannabigerol (CBG) and cannabinol (CBN) as the “next big cannabinoid” to follow cannabidiol (CBD). This surge in popularity appears to be driven by a number of factors, including Δ8THC’s medical utility as an antiemetic and pain reliever. Mostly, though, Δ8THC’s popularity is based on its reputation as a lawful hemp product that produces psychoactive effects, a “legal high”. Due to its reputation and high consumer demand, Δ8THC has become widely available. You can find delta-8 THC products, including vapes, tinctures, edibles, and flowers, in retail stores throughout most of the United States. You can also order delta-8 THC products online. Hardly a day goes by that I don’t see an article about Δ8THC featured in a major media outlet. I receive calls from clients and journalists about Δ8THC almost every day.
There are hundreds, perhaps thousands, of companies involved in the Δ8THC segment of the hemp industry. Due to an oversupply in the market of hemp biomass, hemp extract, and CBD, we have seen a precipitous drop in both prices and profits for these commodities. In contrast, Δ8THC sales are exploding. For this reason, some contend that Δ8THC is singlehandedly saving the hemp industry from economic annihilation. Others, however, contend that Δ8THC is dangerous to the hemp industry’s reputation.
For additional perspective, I recommend you read this article in conjunction with another article I wrote on the legal status of delta-8 THC, entitled “Is Delta-8 THC Legal or Not?”, which you can do by clicking here. Additionally, nothing in this article should be construed as legal advice. As I discuss at the end, “Disclaimer and Important Considerations”, this article articulates a legal theory and position which has yet to be addressed by any court. If you are considering producing or marketing delta-8 THC, you should first consult with an attorney.
II. Is Δ8THC Lawful?
Regardless of the various ways and reasons people use Δ8THC, or of its status as either “savior” or “bane” of the hemp industry, an important question is whether or not its reputation as a lawful hemp product is warranted. In other words, is delta-8 THC legal? I am asked this question on a daily basis.
The crux of the issue is whether or not Δ8THC is a lawful hemp “derivative” under the Agricultural Improvement Act of 2018 (2018 Farm Bill), and thus exempt from the Controlled Substances Act (CSA). It is clear that Δ8THC extracted from a hemp plant is lawful, since the 2018 Farm Bill’s definition of “hemp” includes all cannabinoids with a delta-9 THC concentration that does not exceed 0.3% on a dry weight basis. Although Δ8THC is similar to delta-9 THC, it is a different molecule. It is not delta-9 THC.
This, unfortunately, does not resolve our question since most Δ8THC currently available on the market was not extracted from a hemp plant. Rather, the available Δ8THC was derived from CBD extracted from hemp. This distinction raises two legal issues. First, is Δ8THC derived from CBD “synthetic”? Second, if Δ8THC derived from CBD is “synthetic”, is it an unlawful controlled substance under the CSA? As I will discuss, the answer to the first question is unresolved and depends on what definition is used for the term “synthetic”. Frustratingly, the term “synthetic” is undefined in the law. Fortunately, and as I will discuss, it does not matter whether delta-8 THC is synthetic or not under any definition. This is because the answer to the second question is clearly, “No”. Δ8THC derived from CBD extracted from hemp is not a controlled substance, regardless of whether or not the Δ8THC is deemed to be “synthetic”.
III. Is Δ8THC derived from CBD “synthetic”?
- Δ8THC extracted from hemp is not a controlled substance
Much of the controversy and spilled ink over the legal status of Δ8THC revolves around whether or not Δ8THC is a “synthetic” form of THC. Before discussing the “synthetic” issue, it is important to address the fact that Δ8THC extracted from a hemp plant is clearly lawful. I have read some erroneous legal arguments that contend all Δ8THC is unlawful because it is listed as a controlled substance under the CSA. These legal arguments miss the point entirely. The 2018 Farm Bill defines “Hemp” as:
“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.” (emphasis added)
Δ8THC is a cannabinoid. When a cannabinoid is extracted from hemp, it is lawful by definition since it contains no more than 0.3% delta-9 THC. In fact, Δ8THC does not contain any delta-9 THC. Although they are similar in their molecular structures, and both are THC analogs, Δ8THC and delta-9 THC are two separate and distinct cannabinoids. (Click here for an article I wrote on THC analogs.) The hemp plant produces more than one-hundred distinct cannabinoids aside from delta-9 THC, including Δ8THC, all of which have been removed from the CSA. Specifically, according to the CSA, “tetrahydrocannabinols” are controlled substances, “except for tetrahydrocannabinols in hemp (as defined under section 1639o of title 7)“. (Section 1639o of title 7 is the 2018 Farm Bill’s definition of “hemp”.)
In other words, to say that Δ8THC is a federally controlled substance when extracted from hemp is simply wrong. Δ8THC is only a controlled substance under federal law when extracted from marijuana. (See, eg, the Source Rule, which applies equally to Δ8THC and to other non-delta 9 THC cannabinoids, such as CBD.) It would have been easy for Congress to limit the broad scope of its exemption by using the general term “tetrahydrocannabinol” instead of the more specific term “delta-9 THC” in the definition of “hemp”. It did not. Thus, we must assume Congress meant to exempt all forms of THC from hemp from the CSA, except for delta-9 THC in concentrations above 0.3%. As an aside, I have read the argument that Δ8THC is a controlled substance by virtue of the federal Analogue Act. This position does not have merit and is not worth discussing here, though I address and dispose of it in an article you can read by clicking here.
2. There is no legal definition of “synthetic THC”
The issue of whether Δ8THC is “synthetic” or not arises from the fact that most Δ8THC on the market was not extracted directly from hemp. Rather, it was derived from CBD extracted from hemp. Specifically, a chemical reaction transformed CBD to Δ8THC. This begs the question of whether Δ8THC derived in this fashion is “synthetic” or not. The reason this distinction matters is because of the misguided argument that if Δ8THC is “synthetic”, then it is an illegal controlled substance, since “synthetic THC” is listed as a schedule I controlled substance under the CSA. As I discuss in Part IV, below, this distinction does not matter and all hemp-derived delta-8 THC is exempt from the CSA. It is a useful exercise for our inquiry to determine initially, if we can, whether or not Δ8THC derived from CBD is properly classified as “synthetic” or not. If not, then we can end our inquiry because Δ8THC is clearly not an illegal controlled substance.
It may surprise you to learn that the term “synthetic THC”, which is listed as a controlled substance in the CSA, has no agreed-upon definition. To start with, the term is not defined in any federal statute or court case. The best I could find was this description from a 2018 criminal case:
“[U]nlike THC, which is a partial agonist, synthetic cannabinoids are full agonists. This means, according to Dr. Trecki [a DEA pharmacologist who routinely testifies for the Government in criminal cases about the nature and effects of synthetic cannabinoids], synthetic cannabinoids produce a more intense reaction than THC.” United States v. Hage, 741 Fed. Appx. 194, 195, 2018 U.S. App. LEXIS 18752, *1, 2018 WL 3385467
In the science community, the term “synthetic” is used regularly, though rarely defined. As my friend, Dr. Joseph Baker, explains:
“The words synthetic (or it’s root word synthesis) do not mean ‘Man made’. Every molecule in existence is a product of synthesis. Sugar and oxygen are made synthetically from water, CO2, and sunlight in a process called photo-synthesis. Every protein in the human body is made or modified synthetically by enzymatic synthesis (often called biosynthesis). Sugar is converted to alcohol in the beer making process through yeast synthesis.”
Using this definition, all cannabinoids (not to mention all other compound in our universe) are “synthetic” since they are the product of synthesis. As you might imagine, this is not what the DEA considers to be synthetic.
The Drug Enforcement Agency (DEA) often uses the term “synthetic THC” (see, eg, here, here, here, and here), but its definitions vary. In a 2017 letter to the US Sentencing Commission, the DEA proposed to define “synthetic cannabinoids” as “a substance that acts as an agonist at the CB1 receptor.” While this definition may be helpful to the DEA and federal prosecutors in sentencing hearings due to years of confusion about whether or not the inclusion of THC in the CSA refers only to synthetic THC or to all forms of THC, it does not illuminate what is actually meant by “synthetic” since it captures most cannabinoids, including those naturally occurring in hemp.
According to a 2014 DEA Rule, “[s]ynthetic cannabinoids are a large family of compounds that are functionally (biologically) similar to delta9-tetrahydrocannabinol (THC), the main active ingredient in marijuana. Synthetic cannabinoids, however, are not organic but are chemicals created in a laboratory.” The DEA employs a similar, but not quite identical, definition in a 2011 Rule: “[s]ynthetic cannabinoids are a large family of chemically unrelated structures functionally (biologically) similar to THC, the active principle of marijuana.” The DEA further asserts in the 2011 Rule that “synthetic” refers to “non-organic… chemicals created in a laboratory.”
Finally, I should note that the Centers for Disease Control (CDC) addresses synthetic cannabinoids in articles you can read by clicking here and here, but neither article defines the term. Even a 2014 peer-reviewed clinical paper entitled, “Synthetic Cannabinoids” fails to define what is meant by the term “synthetic” cannabinoids, other than to state that they “are not derived from cannabis and, unlike THC, are full agonists at cannabinoid receptors with biologically active metabolites; they are, therefore, more potent than THC.”
Given the above, what is meant by the term “synthetic THC”? Under a general scientific definition, all compounds are “synthetic”. However, this does not advance our understanding in the context of whether or not delta-8 THC is a controlled substance. Based on the various definitions and positions cited above, we can arrive at multiple conclusions about whether or not delta-8 THC is “synthetic”.
On the “synthetic” side, we can point to the important fact that Δ8THC is produced in a laboratory from another compound, namely CBD. Is this sufficient for it to be classified as a “synthetic” form of THC?
On the “not synthetic” side, we can argue that Δ8THC is chemically related to THC. It is, in fact, a form of THC. Under the DEA’s definition, a cannabinoid must be “chemically unrelated” to THC in order to be “synthetic”. Additionally, to meet the DEA’s definition of “synthetic”, Δ8THC must be a non-organic chemical created in a laboratory. Δ8THC from CBD is created in a laboratory, though it is also an organic chemical naturally expressed in the hemp plant. Moreover, and according to Dr. Baker, “No atoms are added or subtracted during the conversion from CBD to D8. This conversion is simply a rearrangement of electronic distribution.” Also, in response to the DEA’s star expert witness, Dr. Trecki, Δ8THC is not a full CB1 agonist nor does it produce as intense a reaction as delta-9 THC, both of which are required for Δ8THC to meet the definition of “synthetic THC”. Finally, addressing the CDC’s position, Δ8THC is derived from hemp. For these reasons, it appears that Δ8THC is not synthetic.
Based on the above, the question of whether delta-8 THC is “synthetic” appears to be unresolved, though there are compelling reasons to assert that the answer is, “No”.
IV. If Δ8THC derived from CBD is “synthetic”, is it an unlawful controlled substance under the CSA?
Notwithstanding the above, if we assume for purposes of this article that Δ8THC is synthetic, is it rendered an illegal controlled substance under the CSA? The answer is, “No”.
I’ll begin this section with a question I recently received from a reporter and my response to the question.
Question: You assert that CBD-derived Delta-8 is still “hemp-derived” because under the Farm Bill all hemp derived products are considered “hemp.” But your critics contend that the word “derived” implies extraction or distillation rather than synthesis. What is your response to this?
Response: Good question. The answer is that neither the 2018 Farm Bill, nor any other federal statute, defines what is meant by a hemp “derivative”. So, asserting that the word “derived” implies anything is a meaningless and unsubstantiated assertion. Absent a statutory definition, we must rely on the definition that is commonly used in the context in which the term appears. In this context, the term “derivative” arises in the 2018 Farm Bill’s definition of “hemp”. Specifically, the 2018 Farm Bill’s definition of “hemp” includes “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.” The 2018 Farm Bill uses the term “derivative” in a scientific context and so a scientific definition is most appropriate. The Chemicool Dictionary (the standard dictionary for scientific terms) defines “derivative” as:
“a compound that can be imagined to arise or actually be synthesized from a parent compound by replacement of one atom with another atom or group of atoms.”
It is clear that the term “derivative” is not limited to “extraction or distillation rather than synthesis” as you indicate that my critics assert. In fact, the definition actually includes the term “synthesis“. To my critics, I say that the 2018 Farm Bill term that is properly understood to be “extraction or distillation” is a hemp “extract”, not a “derivative”, which has its own, separate meaning. A hemp “derivative” is a compound that arises from a parent compound by the replacement of atoms. This is exactly what happens when hemp-derived CBD is isomerized (another 2018 Farm Bill term) and becomes delta-8 THC. It has nothing to do with “extraction or distillation”.
[T]he term “hemp” includes its cannabinoids, extracts, and derivatives, etc. In other words, CBD from hemp is hemp under the 2018 Farm Bill. And a hemp derivative is also “hemp”. For this reason, delta-8 THC derived from CBD is “hemp”. Properly speaking, it is a “hemp derivative”, which is lawful under the 2018 Farm Bill.
The primary point I make in this exchange is that the term “derivative” is often conflated with the term “extract”. This is consequential because it goes to the heart of this issue. The “parent compound” at issue is CBD that was extracted from hemp. Under the 2018 Farm Bill, CBD is “hemp”, at least from a legal perspective. When Δ8THC “arises from” or is “synthesized” from CBD, then it is a “derivative” of it. In other words, Δ8THC from CBD is a “hemp derivative”, which is specifically provided for under the 2018 Farm Bill. It is “hemp” and, as such, it is exempt from the CSA.
This brings up my final point, which is that when two federal laws appear to be in conflict on an issue and one of the laws is both older and more general than the other, the more recent and specific law will control. In legal lingo, this maxim is called “Lex specialis”, which means that “the more specific controls over the general.” (See, eg. United Ref. Co. Incentive Sav. Plan v. Morrison, 2013 U.S. Dist. LEXIS 166186, *11, 2013 WL 6147672) Wikipedia does a good job of explaining Lex specialis as:
“a doctrine relating to the interpretation of laws and can apply in both domestic and international law contexts. The doctrine states that if two laws govern the same factual situation, a law governing a specific subject matter (lex specialis) overrides a law governing only general matters (lex generalis). The situation ordinarily arises with regard to the construction of earlier-enacted specific legislation when more general legislation is later passed.”
In this case, the older and more general law is the CSA, which generically includes “synthetic THC” on the list of controlled substances. The more recent and specific law is the 2018 Farm Bill, which expressly removes “hemp” from the CSA. Under the 2018 Farm Bill, “hemp” includes its derivatives, among which is Δ8THC.
It is clear that delta-8 THC extracted from hemp is not a controlled substance. When derived from CBD it is unclear whether it is “synthetic” or not, though the better argument is that it is not. Even if we assume for argument’s sake that it is “synthetic”, Δ8THC is still not a controlled substance since it is a “derivative” of hemp, which is specifically included within the 2018 Farm Bill’s definition of hemp.
To that last point, Congress had an opportunity to define “hemp” any way it wished when it enacted the 2018 Farm Bill. It did so by distinguishing hemp from marijuana by virtue of its concentrations of delta-9 THC, rather than by the concentrations of all forms of THC. Additionally, it chose to include “cannabinoids”, “extracts”, “isomers” and “derivatives” of hemp within the definition of “hemp”. In other words, these things are hemp. As such, they are lawful.
Finally, I have seen the opinion expressed that “hemp” is not psychoactive and thus delta-8 THC is not hemp. In response, I suggest those who hold this opinion re-read the 2018 Farm Bill’s definition of hemp, which makes no reference whatsoever to psychoactivity or intoxication. The legal definition may not fit what these individuals think hemp should be; however, what matters from a legal standpoint is what the law says hemp is. In some ways, this pushback reminds me of my earliest days exploring legal issues surrounding CBD. I recall receiving a number of calls from hemp industry professionals concerned with the emergence of CBD products, including CBD gummies. They strongly contended this use was “not intended” by Congress. In retrospect, those objections seem simple and misguided. CBD products are now ubiquitous and CBD consumer products are almost synonymous with hemp. I think (and hope) we will look back on the so-called “delta-8 THC controversy” with the same perspective.
DISCLAIMER AND IMPORTANT CONSIDERATIONS
It is important to note that while Δ8THC has been known and studied in a scientific context for several decades, it is new to the consumer market. I am unaware of any court cases that have considered the legal status of Δ8THC. As of this date, the legal arguments and positions presented in this article have not been tested in any court of law, and it is not known whether a court would adopt them. Neither I, nor any other lawyer, can guarantee that the legal theory about Δ8THC presented in this article and other articles, or any other legal position regarding Δ8THC, would be accepted by a court, nor can I, or any other lawyer, guarantee any specific outcome regarding a legal matter involving Δ8THC.
For this reason, substantial uncertainty and risk currently exists, including the risk of criminal prosecution associated with manufacturing, possessing, selling, and/or using delta-8 THC. I sincerely hope this will change. In fact, one of my motivations in publishing this article is to educate people, including lawyers, regulators, and law enforcement agents, about hemp derived delta-8 THC. In the meantime, deciding whether to produce, market, or even possess Δ8THC should only be done after careful consideration and consultation with an attorney. At a minimum, such a consultation should address the arguments presented in this article and other relevant legal positions, should include a thorough risk-assessment that takes into account any pertinent state laws, and should discuss how delta-8 THC should be marketed and sold given its intoxicating effects. Finally, this article only addresses the legal status of hemp derived delta-8 THC under the federal CSA. It does not take into consideration the Food, Drug & Cosmetic Act, other federal laws and regulations, nor does it address any state laws or regulations, all of which should be considered.
The lawyers at Kight Law are well-versed in the legal and practical issues raised by producing and marketing delta-8 THC. You can contact us to schedule a consultation by clicking here.
Special thanks to Joseph Baker, PhD, for his invaluable assistance in helping me sort through the scientific issues presented in this article. Dr. Baker received his PhD in chemistry from Duke University. He completed a two-year fellowship in pharmacology and cancer biology; spent a decade in the pharmaceutical industry making injectables, topicals, otics, opthalmics, pills, etc.; was the director of a clinical and forensic toxicology lab for three years; and is currently the scientific director for Ratoon Agroprocessing, LLC, a North Carolina registered industrial hemp processor.
Thanks also to my wife, Ashley, for her outstanding editing skills and superhuman patience.
May 6, 2021