The question of “Why Is Delta-8 Legal?” is increasingly common as delta-8 THC products gain popularity. To understand the legality surrounding delta-8, it’s crucial to delve into the nuances of federal legislation, court interpretations, and regulatory oversight. This article breaks down the key factors contributing to delta-8’s current legal status in the United States, while also highlighting the complexities and ongoing debates.
The 2018 Farm Bill: A Cornerstone of Delta-8 Legality
The 2018 Farm Bill serves as the primary foundation for the argument that delta-8 THC is legal at the federal level. This landmark legislation amended the Controlled Substances Act (CSA) to legalize hemp by removing it from the definition of marijuana. Hemp is defined as cannabis with a delta-9 THC concentration of not more than 0.3% on a dry weight basis. Crucially, the Farm Bill also legalized “derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers” of hemp.
Delta-8 THC, an isomer of delta-9 THC, can be derived from hemp. Because the Farm Bill legalized hemp and its derivatives, many argue that delta-8 THC derived from hemp is therefore federally legal, provided the source hemp contains less than 0.3% delta-9 THC. This interpretation hinges on the idea that the legality is determined by the source of the cannabinoid (hemp) and not just its chemical structure.
DEA Clarification: Reinforcing the Hemp-Derived Argument
In September 2021, the Drug Enforcement Administration (DEA) issued a letter that further solidified the understanding of hemp-derived delta-8’s legal standing. Responding to an inquiry from the Alabama Board of Pharmacy, the DEA clarified that “cannabinoids extracted from the cannabis plant that has a Δ9-THC concentration of not more than 0.3 percent on a dry weight basis meet the definition of ‘hemp’ and thus are not controlled under the CSA.”
This statement was widely interpreted as confirmation that delta-8 THC derived from hemp, meeting the delta-9 THC threshold, is not a controlled substance under federal law. The DEA’s clarification was a significant signal to the hemp industry and consumers, reinforcing the idea that hemp-derived delta-8 exists in a legal gray area, distinct from marijuana-derived THC.
Federal Court Ruling: Judicial Backing for Delta-8
The legal standing of delta-8 received further support in May 2022 when the Ninth Circuit Court of Appeals issued a ruling directly addressing hemp-derived delta-8. In AK Futures LLC v. Boyd St. Distro, LLC, the court affirmed that hemp-derived delta-8 THC falls under the definition of “hemp” as defined in the 2018 Farm Bill.
This court ruling was a pivotal moment, providing judicial precedent for the legality of hemp-derived delta-8 at the federal level within the jurisdiction of the Ninth Circuit. It strengthened the argument that as long as delta-8 is derived from hemp and adheres to the delta-9 THC limit, it aligns with the legal definition of hemp under federal law.
FDA Oversight and Safety Concerns: A Regulatory Counterpoint
While the Farm Bill, DEA clarification, and court ruling provide a basis for the perceived legality of delta-8, it’s crucial to acknowledge the role of the Food and Drug Administration (FDA). The FDA has jurisdiction over products consumed by humans, including delta-8 products.
The FDA has expressed concerns regarding the safety of delta-8 THC products, citing factors such as the intoxicating effects and the methods of production. The agency has issued warning letters to companies selling delta-8 products, pointing out illegal marketing practices and safety risks. These actions highlight that while delta-8 may be considered hemp under the Farm Bill, its production, marketing, and sale are not without regulatory scrutiny and potential enforcement actions from the FDA.
State-Level Variations: A Patchwork of Regulations
The legal landscape of delta-8 is further complicated by the variance in state laws. States have taken diverse approaches, ranging from outright bans to specific legalizations and regulations. Some states interpret their existing cannabis laws to encompass delta-8, while others are enacting new legislation specifically to address hemp-derived cannabinoids.
This state-by-state patchwork of regulations means that the legality of delta-8 can differ significantly depending on location. It is essential to be aware of the specific laws in your state or the state where you are purchasing or using delta-8 products. Resources are available to track the evolving state regulations concerning delta-8 and other hemp-derived cannabinoids.
Conclusion: Navigating a Complex Legal Terrain
In conclusion, the perceived legality of delta-8 THC stems primarily from the 2018 Farm Bill’s definition of hemp and its derivatives, reinforced by DEA clarifications and a federal court ruling. However, this legality is not absolute. The FDA’s regulatory oversight and safety concerns, coupled with the diverse state-level regulations, create a complex legal environment.
While federal law currently distinguishes hemp-derived delta-8 from controlled substances, the evolving regulatory landscape and potential future legislative changes mean that the legal status of delta-8 remains a dynamic and closely watched area. Consumers and businesses operating in the delta-8 space must stay informed about federal and state regulations to ensure compliance and navigate this intricate legal terrain effectively.
References
[1] Schedule of Controlled Substances, 21 U.S. Code § 812 (1970), https://www.law.cornell.edu/uscode/text/21/812
[2] Drug Enforcement Administration, September 15, 2021, https://hempindustrydaily.com/wp-content/uploads/2021/11/DEA-letter-to-AL-BOP.pdf
[3] AK Futures LLC v. Boyd St. Distro, LLC, D.C. No. 8:21-cv-01027- JVS-ADS (4th Cir. 2022), https://www.wilsonelser.com/writable/files/Insights/ak_futures_v_boyd_street_distro.pdf
[4] “FDA Issues Warning Letters to Companies Illegally Selling CBD and Delta-8 THC Products,” U.S. Food and Drug Administration, May 4, 2022, https://www.fda.gov/news-events/press-announcements/fda-issues-warning-letters-companies-illegally-selling-cbd-and-delta-8-thc-products ; “5 Things to Know about Delta-8 Tetrahydrocannabinol- Delta-8 THC,” U.S. Food and Drug Administration, May 4, 2022, https://www.fda.gov/consumers/consumer-updates/5-things-know-about-delta-8-tetrahydrocannabinol-delta-8-thc