The Federal Appeals Court has ruled that Delta-8 THC is legal hemp, but some states are still banning it.
On Thursday May 19th, 2022, a panel of the U.S. Court of Appeals for the Ninth Circuit published an opinion that products containing delta-8 THC are generally legal under the 2018 Farm Bill, despite the substances having psychoactive properties.
Quoting the opinion from the 9th Circuit Court of Appeals, the panel of judges wrote that products containing delta-8 THC are general legal under federal law, which defines hemp as “any part of” the cannabis plant, including “all derivatives, extracts, [and] cannabinoids,” that contains less than 0.3 percent delta-9 THC by weight. This is the same for hemp derivatives like CBD, which is used to make delta-8. Federal statute “is silent with regard to delta-8 THC,” the court said in its 3-0 ruling. “Regardless of the wisdom of legalizing delta-8 THC products, this Court will not substitute its own policy judgment for that of Congress,” Judge D. Michael Fisher wrote in the court’s unanimous decision.
WHAT IS DELTA-8 THC & HOW ARE DELTA-8 PRODUCTS CREATED?
In smoke shops and gas stations, Delta-8 is marketed as “weed light” and “legal weed” with products readily available for sale online. So what exactly is Delta-8?
Scientifically known as Delta-8 tetrahydrocannabinol, Delta-8 THC is a psychoactive compound found in the cannabis plant – A minor chemical variant of Delta-9 THC, commonly known as THC. Think of Delta-8 as a distant, less intense cousin of THC (Delta-9).
Delta-8 interacts with the same cannabinoid receptors in our nervous system but with weaker interactions compared to Delta-9: The effects are similar but generally less potent.
Unlike Delta-9 THC, Delta-8 (D8) is found with very small amounts in the plant, so Delta-8 products could not be naturally produced like those with Delta-9. Commercial D8 is obtained mainly from hemp, so it is easier top convert CBD to Delta-8 THC. Hence, most of the D8 products you can find in stores or online are mostly synthesized from CBD directly instead of extracting from hemp plants itself.
AVAILABLE IN 27 STATES, BUT BANNED IN OTHERS?
An article by CBD Oracle actively tracks statewide legality of Delta-8 and its products:
Currently, D8 is available in 26 states and one district while 20 states have regulated, restricted, or banned it, with New York becoming the latest state to ban D8. There are four states which are still reviewing Delta-8’s legal status: Alabama, Illinois, Oklahoma, and Oregon.
HOW SAFE IS DELTA-8?
There have been countless studies delving into the effects and efficacies of Delta-9 THC, but not as many for Delta-8. Although there is certain value as a safe therapeutic, concerns about contamination in unregulated commercial labs synthesizing the cannabinoid remain.
In terms of the legality of Delta-8, it and some other minor cannabinoids are within the realms of the legal gray area. Many businesses in the hemp industry insisted they were legal, but officials in many jurisdictions disagreed.
With the growing popularity of Delta-8 THC in the market, the FDA issued warning letters to companies that sell D8 products, focusing on “the illegal marketing of unapproved delta-8 THC products by companies as unapproved treatments for various medical conditions or for other therapeutic uses”, as well as “drug misbranding” and the use of delta-8 as a food additive. While the DEA does not take a strong stance towards Delta-8, local and state law enforcement agencies have raided delta-8 facilities in multiple states.
The argument persists: Delta-8 and the other isomers that can be created from CBD are illegal according to the Federal Analogue Act of 1986. However, since the 2018 farm bill legalizes ‘isomers and derivatives’ of hemp, this supersedes and overrides any use of the Analogue Act to criminalize hemp-derived molecules, whether they are psychoactive analogues of delta-9 THC or not.
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