Delta 8 THC has been the hottest topic of 2021 in the cannabis industry. It has skyrocketed in popularity due to its reputation amongst cannabis enthusiasts as a “diet THC” or “THC light”. This is in reference to how it affects the body in a less intense way than delta 9 THC, which is the THC that is federally illegal.

These borderline-intoxicating effects are why delta 8 THC is the cannabinoid stirring up so much controversy. We will look at both sides of the legality argument later, but the gist of both sides’ arguments hinges upon the interpretation of the hemp farm bill of 2018.

Before we break down the legal argument, you will need a better explanation of the chemical composition of delta 8, as well as how it is manufactured and how it affects the body.

What is Delta 8?

As mentioned above, delta 8 THC is a cannabinoid very similar in chemical composition to delta 9 THC. Both contain a double-bond, which is thought to be the origin of their intoxicating effects. The double-bond occurs on the 8th carbon atom for delta 8 and the 9th for delta 9. The location of this double-bond is why delta 8 affects the body less intensely than delta 9.

Delta 8 THC is a naturally occurring compound in both hemp and marijuana. This means that, theoretically, delta 8 is legal so long as it is extracted from hemp that is farm-bill compliant. Part of the legal controversy stems from the fact that delta 8 THC is only found naturally in trace amounts. This means that direct extraction methods, such as those used to extract cannabinoids like CBD, are not cost-effective at scale.

Isomerization is the process of changing the molecular arrangement without adding to or subtracting from the chemical composition of the molecule. This is the process used to turn CBD isolate into delta 8 THC distillate.

The delta 8 solution is sold on its own, and it is also infused into edibles, such as gummies and various other forms of candy.

Delta 8 comes in other forms that hemp enthusiasts prefer consuming, such as wax. Flower also exists, but it is not quite the same experience as consuming flower that was bred specifically for a certain dominant cannabinoid. Since it only occurs naturally in trace amounts, delta 8 is actually misted onto dried hemp flower and then re-dried.

Now that you have some background on how delta 8 THC is made commercially, we are ready to discuss the legal controversy surrounding this hot new cannabinoid.

The Legal Controversy Surrounding Delta 8 THC

One of the biggest reasons cannabinoids like CBD are much more tolerated by lawmakers than delta 8 THC is that the latter is the only one with psychoactive effects. In other words, delta 8 is on lawmaker’s radar because it gets people high, albeit at a lower intensity than delta 9 THC.

The main argument of those who are in favor of banning delta 8 THC is that it should be considered a synthetic cannabinoid. They make this argument because of the isomerization process that is used to convert CBD into delta 8 THC. While delta 8 is technically “synthetic” in the sense that the isomerization process occurs in a lab, it is not like the synthetic cannabinoids used for the synthetic marijuana known as “spice”. The very definition of isomerization is that the chemicals are not changed on a molecular level, but rather rearranged.

True synthetic cannabinoids are not derived from the cannabis plant at all. They are completely artificial and were designed to mimic the high of delta 9 THC while remaining undetectable on drug tests. These synthetic cannabinoids are federally illegal, as they should be. The controversy has stemmed from the fact that state lawmakers are using this legislation against synthetic cannabinoids to ban delta 8 THC.

Those who are supporters of delta 8’s entry into the market argue that this is a bad faith argument that misrepresents what delta 8 THC actually is. According to the Hemp Farm Bill of 2018, all cannabinoids that can be found naturally in hemp are legal, which should include D8.

The states that have not banned delta 8 are essentially following the precedent set by the farm bill, while the states that are banning it are following the precedent set by the Federal Analogue Act of 1986. This made it illegal to make a synthetic version of any schedule 1 drug.

The Legal Future of Delta 8 THC

Things have been happening quite quickly when it comes to delta 8 legality. There are 11 states that have banned delta 8 entirely: Alaska, Arkansas, Arizona, Colorado, Delaware, Idaho, Iowa, Mississippi, Montana, Rhode Island, and Utah.

These states feel as if any vendor who sells delta 8 products should have to go through the same licensing process as the recreational and medicinal marijuana industries.

An attempt to ban delt 8 products in Alabama by piggybacking on a bill to ban another substance recently failed.

Illinois decided in mid-April that the delta 8 industry must be regulated on par with their legal marijuana regulations. This seems to be the most likely future outcome for the states who currently have legal recreational and/or medicinal marijuana industries, but have banned delta 8. Oregon and Washington are two legal marijuana states that are currently figuring out how to properly regulate manufacturers and retailers.

If you are a fan of delta 8 products, you will have to keep your eye on your state legislature to see if there are any plans to ban something you buy regularly. Things will continue to change rapidly over the next few months.

This content is provided as a membership benefit to our valuable business-level members. Due to several factors including the variances in state hemp laws and the differences in interpretation of federal law, NHA makes no warrants of the legality, efficacy, or safety of any product, service, or statement made by any third party.

We encourage all members and the general public to do their own due diligence on any business or product, and understanding their state’s and federal laws, before choosing to purchase any product or contracting for any service.

View NHA’s perspective on Delta-8 here.