Prior to 2019, both marijuana and hemp were lumped together by the federal government as “marihuana/marijuana” and classified as a federally prohibited Schedule I drug under the Controlled Substances Act.
That changed with the passage of the 2018 Agricultural Improvement Act (also known as the Farm Bill), which effectively removed “hemp” from the definition of “marijuana” in the Controlled Substances Act. The Farm Bill defined hemp as “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 delta-9 [THC] concentration of not more than 0.3 percent on a dry weight basis.”
Therefore, the difference between federally illegal marijuana and federally legal hemp is the THC content, with the threshold divider being 0.3% THC potency. Thus, while Schedule I prohibits THC, it provides an exception for “tetrahydrocannabinols in hemp.” Furthermore, the DEA has recognized that “any material, compound, mixture, or preparation that falls within the definition of hemp set forth in 7 U.S.C. [§] 1639o” is exempt from federal prohibition.
Simply put, any extracts or derivatives derived from hemp that contain no more than 0.3% delta-9 THC are federally permissible. Enter delta-8 THC.
Delta-8 THC is one of the hundreds of naturally occurring cannabinoids in the cannabis plant, but it is not found in significant amounts. However, it can be manufactured in concentrated amounts from CBD through a relatively simple isomerization process that involves reacting CBD with solvent-acid solutions at high heat.
Despite the simplicity (or as a result of it), not all delta-8 THC is equal, and attention to solvents, acids, cleaning agents and retention of residual chemicals is paramount in creating a clean, unadulterated product. Lack of regulation, oversight and standards results in many delta-8 products containing potentially harmful chemicals such as acetic acid and residual metals. Moreover, it has been reported that many products sold as delta-8 do not actually contain pure delta-8 THC and are instead filled with various other cannabinoids, such as delta-9 THC and delta-10 THC, as well as “unknown” compounds.
Despite many uncertainties about delta-8, it remains federally legal, yet unregulated. Several courts confronted with the issue have confirmed that as long as a delta-8 product is derived from hemp and contains less than 0.3% delta-9 THC, it is legal under the Farm Bill.
Now the paradox: Delta-9 THC remains federally illegal, even as many states continue legalizing and regulating medicinal and recreational marijuana products, and while delta-8 THC is federally legal, many states are enacting laws and regulations prohibiting and restricting the manufacture, sale and use of it. Some prominent states to ban delta-8 include Arizona, Colorado, Nevada, New York, Oregon and Washington. Other states, including Michigan and Virginia, decided to regulate delta-8 like marijuana and require producers to obtain a state license before being allowed to produce and sell delta-8 products.
Recently, other hemp-derived isolates and derivatives, such as delta-9 THC, THC-O acetate and THCV have been hitting the market. Astute cannabis entrepreneurs have figured out how to exploit the less-than-0.3%-THC loophole to legally produce and sell delta-9 THC-infused products.
The Farm Bill authorizes hemp-derived products containing less than 0.3% THC on a dry weight basis, which means for edible and gummy products, up to 0.3% of the product’s dry weight can consist of THC. For example, a bag of gummies that weighs 110 grams can legally contain 100 milligrams of THC (think 20 gummies containing 5 milligrams of THC per serving). Thus, the influx of delta-9 THC edible products available for purchase at gas stations, kiosks and e-commerce websites.
While naturally occurring cannabinoids (biologically existing in the cannabis plant) such as THC and THCV are federally permissible if derived from hemp, the DEA has recently declared synthetic isomers delta-8-THC-O and delta-9-THC-O as federally prohibited substances, irrespective of whether they come from hemp. The DEA determined that because THC-O does not occur naturally in the cannabis plant and can only be created synthetically, it does not fall under the definition of hemp and is a non-exempt synthetic THC prohibited by Schedule I.
To say cannabis legality is a gray area would be an understatement. One thing is certain: The industry and consumers would indelibly benefit from federal regulation, standardization and testing criteria to bring uniformity, consistency and reliability to an evolving market while reducing risks and hazards inherent in the unregulated unknown.