How long will Delta-8 remain legal?
Delta-8 THC, also known as Delta-8, the intoxicating cannabinoid synthesized from hemp, is making waves in the US, especially in states where marijuana is still illegal.
This is because Delta-8 is made from nationally legal hemp, which by law contains less than 0.3% Delta-9-THC. In fact, many manufacturers and retailers are referring to it as “Delta-8-CBD” to highlight its CBD-like legal status. (Confusing? Yes. Delta-8 is made from CBD extracted from hemp, but scientifically speaking it is Delta-8-THC. For more information on the difference between Delta-8-THC and Delta-9-THC, please visit in Leafly’s full guide to Delta 8.)
Kelly O’Connor, director of business development at Columbia Laboratories, Oregon, said her company had seen requests for Delta-8 product tests increase by 30% over the past year.
D-8 is legal nationwide, and most state laws don’t specifically deal with it. But how long will it take?
“It definitely blew up,” she told Leafly. “There is great enthusiasm [for Delta-8] In the southeastern states, the Carolinas, the Dakotas, Texas, wherever people cannot legally aim high. “
O’Connor was interviewed while attending a CBD exhibit in Indianapolis, the largest city in the Prohibited State of Indiana, recently. “I’m surrounded by Delta-8 manufacturers and distributors here,” she noted.
Due to ambiguities in the Agriculture Act of 2018 that legalized hemp and hemp products, Delta-8 is not currently banned by federal law. Because Delta-8 is such a new product, many state laws do not cover it at all, which puts it in a gray area of de facto legality.
But how long will this legal status last?
States are already closing the gaps
Many states are now trying to close loopholes in their drug laws to bring Delta-8 into regulatory compliance. A pending bill in Oklahoma would legally define marijuana as containing delta-8-THC and delta-10-THC in addition to the well-known delta-9-THC. A similar effort is under way in Alabama’s state assembly. In Oregon, lawmakers are working on regulations creating a definition of “man-made” cannabinoids to regulate such compounds under state laws for cannabis for medical and adult use in the state.
In North Dakota, a state legislative committee recently voted to accept changes that would change the state’s definition of THC. “The main purpose of the changes is to resolve the inconsistency that Delta-8-THC is a legal substance,” Tara Brandner, assistant attorney general, told the committee.
Brandner added that hemp growers who disregarded the proposed changes would lose their licenses and those who synthesized hemp into a narcotic could face criminal charges.
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A complicated legal question
The state regulatory landscape regarding Delta-8 is further complicated by various federal approaches to the interconnection.
The 2018 Federal Farm Act that legalized hemp removed hemp from the definition of marijuana by the Federal Controlled Substances Act (CSA). The bill also removed “tetrahydocannabinols in hemp” from the CSA federal definition of THC.
However, Andrea Golan, an attorney in Vicente Sederberg’s Los Angeles office and a member of the law firm’s compliance and hemp practice group, points out that the 1986 Federal Analogue Act was designed to combat the synthetic “designer” drug “- which states that drugs whose chemical structure is similar and which have a similar (actual or intended) effect, similar or greater than that of a controlled substance and which is intended for human consumption, must be treated as a Schedule I or Schedule II controlled substance.
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Look for test cases soon
Golan anticipates test cases will soon emerge in some states to determine the legal status of Delta-8. These legal proceedings can help clarify the legal situation regarding the cannabinoid. However, test cases require a defendant and a charge – which means that someone must be arrested for selling, buying, or possessing Delta-8-THC for this test case to exist.
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The demand for Delta-8-THC, which is extracted from hemp-derived CBD, is currently keeping many hemp growers, processors and distributors alive.
“Some key players in the hemp industry see the potential of Delta-8 and other small cannabinoids,” said Golan. She noted that these stakeholders “may be more likely to involve a legal challenge to state or federal law in order to obtain a decision on the legal status of hemp-derived Delta-8 THC.”
Rumble: Delta-8 should be regulated as an intoxicant?
Columbia Labs’ Kelly O’Connor isn’t sure where Delta-8 will end up in the regulatory landscape. “But my contacts with the American Herbal Products Association and the DEA (Drug Enforcement Administration) and American Western Hemp Professionals and the US Hemp Roundtable have shown that deltas are likely to be regulated as intoxicants,” she told Leafly.
“Anecdotally, we understand that the DEA is actively monitoring the proliferation of Delta-8 THC products.”
– Andrea Golan, lawyer for the cannabis industry
In that case, she added, “It will drive many companies out of this market due to the strict requirements placed on the narcotic market, the THC market, as regulated by the states.”
Andrea Golan expects a federal response to Delta-8 to come from the DEA first. “We have heard from at least one state that they are waiting for the DEA guidelines to set their enforcement priorities,” she said. “Anecdotally, we understand that the DEA is actively monitoring the proliferation of Delta-8 THC products in the market.”
Golan said that while she is not aware of any specific enforcement actions against companies involved in the production or sale of Delta-8, she noted that the DEA “appears to be working to target key players along the Delta-8 THC supply chain in Identifying what we are doing I suspect this could be a prelude to more direct action. “
“Ultimately, Delta-8 needs more regulation,” said Kelly O’Connor of Columbia Labs. “Because without being regulated like a drug, it is sold in the open market in a way that bypasses much of the pollutant testing and batch traceability that you get from a highly regulated market like a Delta-9 market.”
Tips for Delta 8 dealers and consumers
Golan and others offered some best practices for companies selling hemp-derived Delta-8 products and for consumers who buy Delta-8 products.
For Delta-8 manufacturers and retailers:
- Make sure the hemp used to make Delta-8 comes from legal sources.
- Comply with federal and state food and drug laws by following the GRAS reporting procedures (generally recognized as safe) and the “new food ingredient” notification procedures.
- Contract with a manufacturing facility that complies with current Good Manufacturing Practice (cGMPs) regulations.
- Limit purchases to consumers 21 years and older: Install Age Gates on websites and improve age verification procedures for online sales.
- Limit the concentration of Delta-8-THC to safe serving sizes (which are still unknown and need to be determined through safety studies).
- Do not state or promise that the product will get the consumer “high”.
- Make sure products comply with applicable state laws – including manufacturing, ingredients, labeling, and advertising.
- Ensuring suitable SOPs / structures for handling consumer complaints and adverse events.
- Make sure you have adequate insurance coverage and request it from all other providers, suppliers and customers in the supply chain.
For Delta 8 consumers:
- Purchased from a seller who provides a link or QR code to a third-party certificate of analysis to confirm that the product contains the cannabinoids it claims to be chemical and pesticide free and does not contain any unknown compounds.
- Buy from a licensed cannabis retailer in a legal adult cannabis state. This ensures that the Delta-8 product has been laboratory tested for potency and purity. Leafly only lists state-licensed cannabis retailers. Find one near you Here.
Bruce Kennedy is an award-winning reporter, editor, and producer based out of Colorado. He has been in the legal cannabis industry since 2010.
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