USA: The Delta-8 THC Loophole

Under the Agricultural Improvement Act of 2018 (the “2018 Farm Bill”), cannabis products derived from hemp are federally legal to sell and use. “Hemp” is defined in the 2018 Farm Bill as the cannabis plant containing no more than .3% Delta-9 THC.

Delta-9 THC is a cannabis compound that produces the “high” effect commonly associated with cannabis use. However, a less well known cannabis compound, which can be found in plants falling under the federal definition of “hemp,” is gaining notoriety for its ability to produce what its proponents consider, “legal weed”.

Delta-8 THC is derived from CBD extracted hemp plants and has been found to provide a “high” distinct from that experienced from Delta-9, while still falling under the 2018 Farm Bill’s definition of “hemp.” While the Drug Enforcement Administration (the “DEA”) has not made a binding determination of the federal legality of products containing Delta-8 THC, in the DEA’s recently released “Orange Book,” Delta-8 THC is listed as another name for Tetrahydrocannabinols, which is listed as a Schedule I controlled substance under the federal Controlled Substances Act.

This recent development seems to run afoul of the Controlled Substances Act’s definition of Tetrahydrocannabinols which “does not include any material, compound, mixture, or preparation that falls within the definition of hemp” set forth in the 2018 Farm Bill. In other words, while Delta-8 is “another name” for Tetrahydrocannabinols, its presence in any quantity in federally legal hemp plants provides a risky grey area for brave cannabis producers to work—and profit—within.

Fifteen states have already implemented restrictions on Delta-8 THC products and other states are taking steps to follow suit.

https://www.jdsupra.com/legalnews/the-delta-8-thc-loophole-6429201/

Top 200 Cannabis Lawyers

Cannabis Law Journal – Contributing Authors

Editor – Sean Hocking

Author Bios

Canada
Matt Maurer – Minden Gross
Jeff Hergot – Wildboer Dellelce LLP

Costa Rica
Tim Morales – The Cannabis Industry Association Costa Rica

Nicaragua
Elvin Rodríguez Fabilena

USA

General
Julie Godard
Carl L Rowley -Thompson Coburn LLP

Arizona
Jerry Chesler – Chesler Consulting

California
Ian Stewart – Wilson Elser Moskowitz Edelman & Dicker LLP
Otis Felder – Wilson Elser Moskowitz Edelman & Dicker LLP
Lance Rogers – Greenspoon Marder – San Diego
Jessica McElfresh -McElfresh Law – San Diego
Tracy Gallegos – Partner – Fox Rothschild

Colorado
Adam Detsky – Knight Nicastro
Dave Rodman – Dave Rodman Law Group
Peter Fendel – CMR Real Estate Network
Nate Reed – CMR Real Estate Network

Florida
Matthew Ginder – Greenspoon Marder
David C. Kotler – Cohen Kotler

Illinois
William Bogot – Fox Rothschild

Massachusetts
Valerio Romano, Attorney – VGR Law Firm, PC

Nevada
Neal Gidvani – Snr Assoc: Greenspoon Marder
Phillip Silvestri – Snr Assoc: Greenspoon Marder

Tracy Gallegos – Associate Fox Rothschild

New Jersey

Matthew G. Miller – MG Miller Intellectual Property Law LLC
Daniel T. McKillop – Scarinci Hollenbeck, LLC

New York
Gregory J. Ryan, Esq. Tesser, Ryan & Rochman, LLP
Tim Nolen Tesser, Ryan & Rochman, LLP
Cadwalader, Wickersham & Taft LLP

Oregon
Paul Loney & Kristie Cromwell – Loney Law Group
William Stewart – Half Baked Labs

Pennsylvania
Andrew B. Sacks – Managing Partner Sacks Weston Diamond
William Roark – Principal Hamburg, Rubin, Mullin, Maxwell & Lupin
Joshua Horn – Partner Fox Rothschild

Washington DC
Teddy Eynon – Partner Fox Rothschild