Move Over CBD, Make Room for DELTA-8 THC

Readers of this article are likely familiar with cannabidiol, more prominently known by its initialism “CBD,” which has exploded in popularity over the past several years. However, the cannabis industry is buzzing about a derivative of CBD that is quickly gaining notoriety: Delta-8 tetrahydrocannabinol (D-8 THC). The rising popularity of D-8 THC can be attributed to its somatosensory effects, and because (as of the writing of this article) D-8 THC is not illegal under federal law. As a result, cannabis businesses are moving quickly to synthesize, market, and sell D-8 THC products.

What is D-8 THC?

D-8 THC must be distinguished from Delta-9 tetrahydrocannabinol (D-9 THC), which is the cannabinoid present in the cannabis plant that causes intoxicating effects. The level of D-9 THC in cannabis plants is measured to determine whether a cannabis plant constitutes hemp, which is legal under federal law, as opposed to marijuana, which is illegal under federal law. D-9 THC and D-8 THC are isomers of each other, meaning they contain the same number of atoms of the same elements, but with a different structural arrangement. As previously mentioned, D-8 THC is gaining popularity because of the “high” that users experience. After consuming D-8 THC, individuals report feelings of body euphoria, but without the mind-altering effects that marijuana containing high levels of D-9 THC causes. Thus, D-8 THC is being touted as an alternative for folks that disfavor the fogginess, paranoia, or anxiety sometimes associated with marijuana consumption.

Is it legal?

Under the Agriculture Improvement Act of 2018 (aka, the 2018 Farm Bill) (AIA), a cannabis sativa L. plant having a D-9 THC content of less than 0.3%, measured on a dry weight basis, constitutes hemp, as opposed to marijuana, and is legal. Notably, the AIA does not reference D-8 THC. Furthermore, the Federal Controlled Substances Act, the law that schedules and generally outlaws narcotics, expressly excludes hemp, thus making it a legal substance. Thus, the federal legality of products containing D-8 THC hinges on whether that product is derived from a marijuana plant, or a hemp plant, with the latter currently legal under federal law. Because of this seeming loophole, cannabis businesses are eager to produce, market, and sell D-8 THC products.

However, cannabis businesses should proceed with caution. It should be noted that as of the writing of this article, the determination of the legality of D-8 THC has not been addressed by any court. Further, as with any new development affecting the cannabis industry, the legal landscape is rapidly changing with respect to D-8 THC. On August 21, 2020, the U.S. Drug Enforcement Administration (DEA) issued an interim final rule (IFR) on the implementation of the AIA. While the IFR is not yet law, if enacted the IFR would be incorporated into the DEA’s regulations, and would effectively make D-8 THC illegal. This is because the IFR provides that “[a]ll synthetically derived tetrahydrocannabinols remain schedule I controlled substances.” D-8 THC squarely fits within this definition.

As previously mentioned, the IFR is not yet enacted law, and the DEA is accepting comments with respect to the IFR. Cannabis industry players and cannabis legal experts have taken issue with the IFR, and have alleged that the DEA has misinterpreted the AIA. As a result, the status of whether D-8 THC is legal remains far from certain.