Delta-8 THC is garnering a lot of attention because of both its proliferation in consumer hemp products and the controversy over its legal status. Delta-8 THC is an isomer of the more commonly known delta-9 THC, meaning that their chemical composition is essentially identical, though less is known about their differing effects on the human body.
But because delta-8 THC occurs naturally in such minimal concentrations in average cannabis plants, practically all delta-8 THC sold today is created through chemical processes using hemp-derived CBD as the source material.
And the various agencies responsible for regulating hemp and cannabinoids have together created the conditions for a rampant pseudo-legal market for delta-8 THC that is becoming increasingly difficult for cannabis businesses and consumers to navigate.
Federal questions
The 2014 Farm Bill allowed large-scale, legal cannabis cultivation for the first time since the 1930s by establishing a brand-new hemp industry, which saw a massive increase in innovation during the pilot program’s roughly five-year span. Many creative cannabis processors took a “whole plant approach,” discovering and bringing new cannabinoids to market, including delta-8.
The Agricultural Improvement Act of 2018 (commonly referred to as the 2018 Farm Bill) expanded the definition of hemp to include extracts and derivatives as exempt from the Controlled Substances Act definition of marijuana, further galvanizing the assumption of hemp producers that the floodgates to a broad, open market for hemp products were ready to be blown wide open.
The DEA, however, has continued to take an unfavorable view of cannabis products and cannabinoids that fall within controlled-substance categories on the Controlled Substances Act, even if they are derived from lawful hemp. In adopting the 2018 Farm Bill definition of marijuana, the DEA’s Interim Final Rule recognized that extracts from hemp with a delta-9 THC concentration not exceeding 0.3% are lawful, as are, presumably, other naturally occurring tetrahydrocannabinols in that extract, ostensibly including delta-8 THC.
However, while delta-9 THC concentration is the only chemical factor determining the classification of a hemp extract under the 2018 Farm Bill definition, the delta-9 concentration is immaterial when determining the federal legal status of synthetic cannabinoids, all of which are still considered unlawful under the Controlled Substances Act.
The 1986 Controlled Substances Analogue Act treats drug analogues as equivalent to their scheduled counterparts, defining “Controlled Substance Analogue” as a substance “the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II.”
If the DEA track record on the matter is any indication, the agency is unlikely to be sympathetic to the argument that lab-created delta-8 THC is lawful because it is manufactured from hemp. The DEA has absolute authority to enforce control of delta-8 THC as either a synthetic cannabinoid or a drug analogue, and in its most recent codebook has listed it as an “other name” for tetrahydrocannabinols under a Schedule I designation.
Businesses seeking to make delta-8 THC the cornerstone of their product line need to make the decision as to whether they are willing to operate at the sole discretion of the DEA and with the knowledge that the DEA’s non-enforcement policy could change at any time, without notice (though some individual states that have legalized marijuana allow the sale of delta-8 products and others may follow suit).
Although the 2018 Farm Bill did not mention delta-8 THC, many states recognized elements of the U.S. Department of Agriculture’s Final Rule that tightened restrictions generally and began to proactively regulate delta-8 THC and other minor cannabinoids.
Industry professionals have found themselves in the midst of an era that is both exciting and confusing to navigate. With marijuana still listed in the Controlled Substances Act, and the lack of clarity as to what is considered “synthetic” and therefore illegal under the CSA, delta-8 THC is in a state of flux. Nevertheless, the industry persists, and some states are taking measures to actively support the market for delta-8 THC.
Oregon
Oregon is an example of a state that had established a functioning hemp pilot program, and where legislators are now shifting to focus on developing rules for delta-8 THC. The cannabis industry is no stranger to Oregon, which began permitting the sale and use of medical marijuana products for medicinal purposes in 1998. Now, more than two decades later, Oregon is at the forefront of developing a framework for regulatory compliance that in some ways creates additional hurdles for the hemp industry, and in other ways levels the playing field between the hemp and the marijuana industries.
Where hemp was previously regulated by Oregon’s Department of Agriculture, recent legislation put both hemp and marijuana products under the purview of the Oregon Liquor and Cannabis Commission. In one of its first temporary emergency rulemaking acts, the OLCC sent a strong message to the hemp industry by redefining “adult use cannabis item” to include any industrial hemp commodity or product that exceeds 0.5% aggregate concentration of cannabinoids, including delta-8 and delta-9 THC.
By explicitly including delta-8 THC in its definition of “adult use cannabis item,” the OLCC has demonstrated direct intent to assert its authority to regulate delta-8 THC as a viable commodity within the cannabis industry.
Moreover, the OLCC went a step further and stated in its emergency rules that the term “artificially derived cannabinoid” does not include a “naturally naturally-occurring chemical substance that is separated from the plant Cannabis family Cannabaceae by a chemical or mechanical extraction process” nor does it include “cannabinoids that are produced by decarboxylation from a naturally-occurring cannabinoid acid without the use of a chemical catalyst.”
Oregon notably refrained from using the word “synthetic” in its definitions, likely to evade implications of that term under federal law, while effectively pushing the DEA’s boundaries by developing a clear avenue for “artificially derived cannabinoids” to be manufactured within the state’s legal cannabis industry.
Future
The rules affecting the hemp industry and delta-8 THC’s role within that industry in Oregon and other states continue to evolve. As we hopefully move closer to federal deregulation, this is a sign that the cannabis industry, both on the hemp side and the marijuana side, will move in a direction that reflects the whole plant approach, allowing both industries to grow together in the broader U.S. market.