Is Delta-8 THC Legal in My State?
By: Heidi Urness, Attorney at Heidi Urness Law, PLLC & Solomon Hollingsworth, SLU MBA 22’ | Cannaclusive
Delta-8 THC (tetrahydrocannabinol) has taken the cannabis industry by storm. Despite falling into a legal gray area, the Delta-8 THC compound is exploding in popularity with consumers throughout the country since late 2019, resulting in disruptions in both the CBD and Delta-9 THC markets and legislative action by some states to prohibit sales of products containing Delta-8 THC.
I. What Is Delta-8 THC?
Delta-8 THC is a chemical compound in cannabis that has been increasing in popularity across the country, in both states with regulated marijuana industries as well as states in which marijuana states is still prohibited. Due to its similarities with Delta-9 THC, including its production of a mild “high,” or psychoactive* effect, droves of consumers in states where cannabis is illegal are turning to Delta-8 THC. In states where marijuana is legal and regulated, many consumers have turned to the “new” compound because Delta-8 THC products often cost less than Delta-9 products.
II. Is Delta-8 THC Legal Federally?
However, because Delta-8 THC can be extracted from both cannabis and hemp, and because it can be “manufactured” from other cannabinoids through a process called isomerization, the federal government’s position on the legality of the compound remains wholly unclear. This is because, in August 2020, following the passage of the 2018 Farm Bill which amended the Controlled Substances Act to defined illegal THC’s as “Tetrahydrocannabinols, except for tetrahydrocannabinols in hemp (as defined under section 1639o of title 7),” the DEA — well outside of the bounds of its authority — attempted to recapture Delta-8 THC (and many other cannabinoids) in Schedule I of the Controlled Substances Act by issuing an Interim Final Rule which amends the definition of tetrahydrocannabinols. Legal experts have challenged the validity of this rule and these changes by filing lawsuits; industry participants and the public either challenged or supported this rule and changes by flooding the DEA with public comments.
III. Is Delta-8 THC Legal in My State?
In light of this federal legal uncertainty, many states have now taken action to regulate the compound within their borders. The following is an analysis of all 50 states’ stance on Delta-8 THC. The following should not be considered legal advice, and is provided for educational purposes only (updated 7/21/21):
- Alaska Statutes, Title 11, Chapter 71, Section 160(f)(3): Alaska law lists “tetrahydrocannabinols” as Schedule IIIA Controlled Substances.
- Delta-8 THC is therefore prohibited. The state can punish even the mere possession of THC as a misdemeanor or a felony.
- Arizona Revised Statutes, Title 36, Section 2512: Arizona law lists “any material, compound, mixture or preparation that contains any quantity of the following hallucinogenic substances and their salts, isomers and salts of isomers: […] Cannabis, except the synthetic isomer of delta-9-tetraydrocannabinol” as a Schedule I Controlled Substance. “Cannabis” is defined to include “(c) Every compound, manufacture, salt, derivative, mixture or preparation of such resin, tetrahydrocannabinol (T.H.C.), or of such plants from which the resin has not been extracted.”
- Arizona Revised Statutes, Title 3, Chapter 2, Article 4.1 carves out an exception for “industrial hemp” which is defined as “the plant cannabis sativa L. and any part of such a plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than three-tenths percent on a dry weight basis.”
- Thus, it is legally unclear whether Delta-8 THC is prohibited under Arizona Law. Since Delta-8 THC is a “part of” a hemp plant, then manufactured Delta-8 THC could be considered industrial hemp and excepted from the State’s Controlled Substances Act. However, if Delta-8 THC is considered the synthetic isomer if Delta-9 THC, then it is excluded from the CSA by the CSA’s own terms
- Arkansas Code, Title 5, Chapter 56: Arkansas’ Uniform Controlled Substances Act categorizes “any material, compound, mixture, or preparation, whether produced directly or indirectly from a substance of vegetable origin or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, that contains any quantity of [marijuana,] [tetrahydrocannabinols,] [a synthetic equivalent of: (A) The substance contained in the Cannabis plant; or (B) The substance contained in the resinous extractives of the genus Cannabis,] [synthetic substances, derivatives, or isomers of tetrahydrocannabinols], or that contains any of their salts, isomers, and salts of isomers when the existence of the salts, isomers, and salts of isomers is possible within the specific chemical designation” as Schedule VI Controlled Substances.
- These laws translate to a relatively robust and complete prohibition of Delta-8 THC
- Colorado Criminal Code, Title 18, Section 205: Colorado Law categorizes “tetrahydrocannabinols” as Schedule I Controlled Substances, and includes in this definition “synthetic equivalents of the substances contained in the plant, or in the resinous extractives of, cannabis, sp., or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity.”
- This broad definition of THC likely encompasses Delta-8 THC, making Delta-8 THC prohibited in Colorado.
- A notice issued in May 2021 by the Colorado Health Department states, “chemically modifying or converting any naturally occurring cannabinoids from industrial hemp is non-compliant with the statutory definition of ‘industrial hemp product.’”
- Connecticut Senate Bill 1201 was signed into law June 22, 2021 and became effective July 1, 2021. Connecticut expressly defines tetrahydrocannabinol as “including, but not limited to, delta-7, delta-8-tetrahydrocannabinol, delta-9- tetrahydrocannabinol and delta-10-tetrahydrocannabinol, and any material, compound, mixture or preparation which contain their salts, isomers and salts of isomers […].”
- A Department of Consumer Protection Commissioner stated, “This change will ensure that hemp products that contain any type of THC that exceeds 0.3 percent on dry weight basis will now be regulated.”
- Therefore, under Connecticut law, Delta-8 THC products may only be sold at a medical marijuana dispensary or a licensed cannabis retailer. (Note: License applications are not yet available. Presently, the only way to obtain products with any type of THC in Connecticut is from a medical marijuana dispensary.)
- Delaware Code Title 16, Chapter 47, Section 4701: Delaware’s Uniform Controlled Substances Act states that, “any material, compound, combination, mixture, synthetic substitute or preparation which contains any quantity of marijuana or any tetrahydrocannabinols, their salts, isomers or salts of isomers and is not approved for use by the US Food and Drug Administration” are considered Schedule I Controlled Substances.
- Delta-8 is therefore considered prohibited in Delaware.
- Florida differs from many other states in their current approach to cannabinoids, including THC. Instead of defining THC broadly and classifying THC and marijuana derivatives and isomers as Controlled Substances, Florida law instead defines “hemp” broadly. In Florida, hemp encompasses “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 total delta-9 tetrahydrocannabinol concentration that does not exceed 0.3 percent on a dry weight basis. Hemp produced in accordance with this section is not cannabis as defined in s. 893.02.”
- Although Florida’s Controlled Substances Act includes in Schedule I “[a]ny tetrahydrocannabinols naturally contained in a plant of the genus Cannabis, the synthetic equivalents of the substances contained in the plant or in the resinous extracts of the genus Cannabis, or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity, including, but not limited to, Delta 9 tetrahydrocannabinols and their optical isomers, Delta 8 tetrahydrocannabinols and their optical isomers, Delta 6a,10a tetrahydrocannabinols and their optical isomers […]”, Florida’s hemp laws may be broad enough to protect Delta-8 THC.
- Florida’s Department of Agricultural Consumer Services released a statement that seems to certify that, in fact, Delta-8 THC does not run afoul of its statutes, stating: “Delta 8: […] Any hemp or hemp extract products offered for sale or sold in Florida must comply with all labeling rules and have a certificate of analysis that shows a total THC (THCA x .8777 + THC Delta 9 = total THC) content of 0.3% or less. Any hemp or hemp extract product that does not comply with all statutes and rules is subject to enforcement […].”
- Thus, as long as the total THC content is .3% or less, it appears these products will be available for sale without threat of enforcement in Florida.
IV. “Welcome to Cannabis, Now Lawyer Up”
Whether you are a cannabinoid entrepreneur, marijuana licensee, or shop owner interested in adding Delta-8 THC products to your shelves, ensure you stay abreast of these every-changing laws and regulations, and prepare your business to take advantage of legal uncertainties and/or be ready to adapt to legislative actions that could detrimentally affect your bottom line.
Contact Heidi Urness Law, PLLC with your Delta-8 THC questions, other issues affecting your marijuana, hemp, and/or CBD business, and any other cannabis-related issues.