Most Americans are familiar with the term “THC” at this point. What they might not yet appreciate is that common nomenclature is actually referring to Delta-9-tetrahydrocannabinol or “Delta-9” THC. That’s the scientific terminology for the molecule in marijuana that’s well-known for its psychoactive properties—i.e., what causes a “high.” Delta-9 is a cannabinoid and there are hundreds of different cannabinoids within any given cannabis plant.
But, while Delta-9 THC is the compound routinely sold as marijuana, it’s not the only cannabinoid with psychoactive properties found in the cannabis (marijuana or hemp) plant. Another compound, Delta-8-tetrahydrocannabinol (“Delta-8”), also causes a “high,” albeit perhaps a weaker one. Like Delta-9, Delta-8 contains tetrahydrocannabinol, or “THC.”
While Delta-9 is illegal under federal law (and in some remaining states) because it has psychoactive effects, Delta-8 may be presumptively legal. That’s a result of the way Congress drafted the 2018 Farm Bill, which legalized hemp but continued to criminalize marijuana. The law defines “hemp” to mean any part of the cannabis plant with a Delta-9 concentration of less than 0.3%. “Marijuana” contains more than 0.3% Delta-9 and is illegal. The vast majority of state laws mirror this definition.
When Congress legalized all cannabinoids naturally derived from the hemp plant, with the exception of Delta-9 THC testing above 0.3% THC, some in the hemp industry saw this as an opportunity to “lawfully” sell hemp-derived Delta-8 THC. Some in the hemp industry, including the U.S. Hemp Roundtable’s general counsel, have acknowledged that Delta-8 products clearly “violate the spirit of the law,” but it’s unclear whether they violate the letter of the law. This seems to mean that a cannabis plant containing less than 0.3% Delta-9, but significant concentration of Delta-8, could be classified as legal hemp under the law’s plain text.
However, the Drug Enforcement Administration’s interim final rule which was intended to address the Farm Bill’s legalization of hemp, confirms that “synthetically derived tetrahydrocannabinols” are still illegal. Unfortunately, the IFR doesn’t explain what “synthetically derived” means. Because Delta-8 is derived from hemp through a process that arguably changes the molecular structure of CBD, it’s plausible that DEA will conclude that Delta-8 is synthetically derived when they issue their final rule.
Entrepreneurs have swiftly responded to the current loophole and a Delta-8 market has exploded. Indeed, Delta-8 “is easy to purchase on-line, get delivered in the mail, or find at an unlicensed store .” In particular, “Delta-8 sellers are increasingly cropping up in ‘cannabis deserts,’ where licensed pot shops haven’t opened.”
The fact that Delta-8 exists in a legal gray area, however, means that it’s not subject to the same oversight or scrutiny that is increasingly applied to substances like cannabidiol (“CBD”) or state-legal marijuana that is tested for consumer safety.
A former Illinois state senator, Pam Althoff, who is now the executive director of the Cannabis Business Association of Illinois, explained that “Delta-8 is creating a competitive market without being subject to the same standards and regulations and rules of the cannabis industry.” Relatedly, a cannabis testing laboratory tested multiple Delta-8 products and found “high levels of residual solvents and heavy metals, namely lead and chromium” in products.
Because the hemp plant draws heavy metals from the ground, it’s no surprise that untested Delta-8 products contain heavy metals. The Food and Drug Administration has repeatedly expressed similar concerns regarding the presence of heavy metals and other contaminants, such as pesticides, in CBD. More, some Delta-8 products have been shown to contain illegal concentrations of Delta-9, which means that they in fact violate state and federal marijuana laws.
In response, some states are taking steps to regulate or ban Delta-8. Oregon’s Liquor Control Commission began a rulemaking process for Delta-8 in response to commission members’ “concern about the general availability of this unregulated intoxicating product.” In explaining the rulemaking process, the Commission has emphasized that Delta-8 product sales are flourishing due to a “regulatory gap” that does not require final product testing and expressed concern about the lack of transparency requirements in labeling. Similarly, the Washington Liquor and Cannabis Board has begun steps toward a rulemaking proceeding on Delta-8’s legal status. In the meantime, the state has issued an advisory opinion stating that Delta-8 derived from marijuana via natural means is legal, while Delta-8 that is synthetically derived from hemp compounds is considered an unlawful additive.Taking a more restrictive approach, North Dakota’s legislature has passed amendments to its current hemp law to ban Delta-8 (along with Delta-9 and Delta-10) altogether. While the Oregon Commission’s remarks suggest a response focused on testing and labeling requirements, North Dakota would take a stricter approach. Its amendment changes the definition of “THC” to mean the total amount of THC in a plant, regardless of its source, rather than the total amount of Delta-9-THC, as was previously the case.
And in Illinois, a Democratic representative has introduced House Bill 147, which would regulate Delta-8 and other cannabinoids. Again, the concern is easily available products in “kiosks and shops [that] are ‘untested, unsafe, and high in metals and pesticides.’”
As states take action and lawmakers across the country become more aware of concerns about Delta-8’s availability and safety, it’s likely more state hemp bills will be amended to address the current gap in regulations. It remains to be seen whether most states will simply impose licensing, testing and labeling requirements or ban the substance outright. Similar amendments to federal law and regulation could be possible, too.
In the meantime, companies choosing to sell Delta-8 products should know that state and federal regulators are watching and soon producers could find themselves in an unenviable place to be.
 See 7 USC 1639o(1).