Cannabinoids and their legalities are beyond confusing, changing all the time. At one point, delta-8 THC seemed widely accepted, and now, people are regularly asking, “Is delta-8 federally illegal?”
So, what’s happening? What’s the gist of the recent delta-8 and the DEA buzz?
Let’s find out.
Delta-8: The Recap
There are nearly 100 naturally occurring cannabinoids in cannabis plants, and the primary psychoactive substance in cannabis is delta-9 THC (or just THC). As nature would have it, there’s another cannabinoid compound sharing a similar chemical structure with delta-9 THC.
It shares similar effects with THC, including being psychoactive, but to a lesser degree.
The cannabinoid was aptly named delta-8 THC (commonly referred to as delta 8) and is sometimes termed the nicer or milder version of THC.
Although delta-8 gained notoriety in recent times, there’s evidence that scientists used it for experiments 50 years ago. Its rise to popularity in recent times is all thanks to the 2018 Farm Bill, which federally legalized hemp – that’s cannabis with less than 0.3% THC.
Delta-8 THC Assumes Federal Legality Amidst Controversies
The Farm Bill saw a wave of cannabinoids flooding the market, among which was delta-8, which got people high. Users and manufacturers welcomed it with confusion because it sure felt like something that should be illegal.
Hence, many questions were asked, one of which was, “Is delta-8 illegal federally?” All around, the answer was no.
You see, the law inadvertently created a loophole that automatically legalized all hemp-derived cannabinoids. Hence, delta-8, which naturally occurs in hemp in minuscule amounts, became technically legal federally.
But if it’s only available in hemp in minuscule amounts, how are manufacturers able to extract commercial amounts from hemp?
That’s the thing: they don’t. Nearly all delta-8 in delta-8 products flooding the market today are synthesized in the lab from hemp-derived CBD.
Then, in 2021, delta-8 advocates rode high on a DEA statement that appeared to only consider delta-8 produced from non-cannabis material as unlawful.
Since the artisanal cannabis market is unregulated, most companies synthesizing delta-8 from CBD do not meet national standards for health and safety. As a result, studies have found numerous delta-8 products to contain harmful contaminants that have very adverse effects on humans.
Between January 1, 2021, and February 28, 2022, national poison control centers filed 2,362 cases of delta-8 THC exposure. Of the cases filed thereabout that timeframe, 104 cases were adverse, with 55% requiring emergency services.
The spate of contaminated, lab-synthesized delta-8 products, marketing of delta-8 in copycat products, and the uptick of delta-8 exposure cases fueled the rumble between FDA and the DEA and delta-8 manufacturers.
There were many warnings to delta-8 companies and public notices for people to avoid delta-8, but none clearly spelled delta-8 illegality until recently.
Delta-8 and the DEA: Changing Minds?
In February, an attorney wrote to the DEA inquiring about the legal status of delta-9 THC and delta-8 THC lab-synthesized from THCO. In a response letter, the DEA confirmed that delta-8 and delta-9 THCO were illegal controlled substances.
Thus, a fresh public bout between the DEA and delta-8 was birthed.
At the 2023 DEA Supply Chain Conference in May, the section chief of the DEA Drug and Chemical Evaluation Section, Terrance Boos, announced that consequent to multiple public petitions, the DEA is in the process of modifying regulations to clarify the legal status of lab-synthesized cannabinoids, including delta-8 and synthetic CBD.
Earlier this month, attorney Shane Pennington while reviewing lawsuits that were challenging states that banned delta-8 — 14 states have banned delta-8 sales –- dug up an email from a top DEA official.
In the email, the top official made it perfectly clear that even when synthesized from legal CBD, the DEA considers delta-8 to be a federally illegal substance.
This reveal has spurred another round of questions on delta-8 legality: Is delta-8 illegal federally? Is delta-8 THC federally legal to buy? Is delta-8 federally illegal?
So, Is Delta-8 Federally Illegal?
Even with the clarity the email brought, “Is delta-8 illegal federally?” is a question that still doesn’t have a straightforward yes or no answer.
We will answer the question in two bits to provide a well-defined perspective:
- Is delta-8 federally illegal when extracted from natural hemp? No, delta-8 is not federally illegal if it’s extracted purely from natural hemp. However, it is nearly impossible for marketers to produce commercial quantities from natural hemp, as it’s only available in trace amounts.
- Is delta-8 illegal federally when it’s lab-synthesized? Yes, lab-synthesized delta-8 is illegal federally. A quick review of the delta-8 and the DEA bouts shows that lab synthesis is where the DEA holds beef with delta-8.
“If the product contains any quantity of synthetic tetrahydrocannabinol, it is controlled in schedule I of the CSA, unless it is specifically excepted or listed in another schedule The Agricultural Improvement Act of 2018 (AIA), Pub. L. 115-334, § 12619, amended the CSA to remove,” according to the DEA.
In many communications, the DEA has expressed points that seem to indicate that the agency doesn’t mind delta-8 THC sourced directly from natural hemp. However, synthetic delta-8 is simply a no-no.
The report by Boos showed that there are far too many inconsistencies in commercial delta-8 manufacture. In an Oregon case, a testimony by a hemp and processing compliance specialist showed that a delta-8 product analysis revealed that the product contained 30% unknown substances.
Cases like this reiterate why the agency is so against lab-synthesized delta-8 and why the delta-8 and the DEA conundrum is most likely to only end when there is a clear law banning synthetic delta-8 at the federal level.
Currently, such a law is only implied and not fully enforced at the federal level.
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