Is Delta 8 THC Legal? Overview of D8 Legality by State

illustration of a woman holding a big gavel, Delta 8 THC products in bottles, large mallet, law weight scales and books
Written by Nina Julia | Last updated: September 3, 2021

How is Delta 8 THC — an analog of Delta 9 THC — legal while the marijuana plant still remains in Schedule I of the Controlled Substances Act?

The National Institute of Health (NIH) reports there are currently at least 144 known cannabinoids that have been isolated from the cannabis plant and synthesized. The two most popular cannabinoids are cannabidiol (CBD) and delta-9-tetrahydrocannabinol (THC). 

The latter is known for inducing the signature cannabis high attributed to marijuana consumption on top of its health benefits.

Recently, another cannabinoid from the family has started to tear through the mainstream media.

It’s not CBN, CBG, or CBC — it’s delta-8 THC, an analog of delta 9 THC.

Surprisingly, this cannabinoid is theoretically legal on a federal level due to specific loopholes in the law.

The Delta 8 THC space is also one of the fastest-growing segments in the cannabis industry.

How are delta 8 products made? Is their legal status here to stay, or will we see rapid shifts in the federal policy with the recent statement of the DEA being triggered by smart entrepreneurs like Area 52?

You’ll learn everything from today’s article.

What Is Delta 8 THC?

When most people hear of THC, they associate it with the intoxicating cannabinoid that gets them high and has a wide range of therapeutic properties.

But did you know that THC can have many faces — one of them being delta 8 THC?

Delta 8 is one of the analogs of delta 9. The term “analog” means it has a very similar molecular structure, with minor differences in the arrangement of its atoms.

The cannabinoid is mildly intoxicating; it has half the potency of delta 9 THC, which is the main reason why some people call it “diet cannabis” or “cannabis light.”

Aside from that, delta 8 THC offers several therapeutic properties, including relief from nausea, anxiety, pain, and sleep disturbances.

Long story short, Delta 8 is another wellness product from cannabis that people choose to experiment with different cannabinoids.

The best thing about delta 8 THC is that it’s federally legal — at least from the sheer legislative standpoint.

We’ll get to that in a second, but for now, let’s discuss the differences between delta 8 THC and delta 9 THC.

Read more: What is Delta 8 THC?

How Is Delta 8 THC Different from Delta 9 THC?

As mentioned, delta 8 THC is an analog of delta 9.

As such, it has a similar chemical structure, with a very subtle difference that may be insignificant for those who aren’t interested in chemistry.

Both cannabinoids interact with the endocannabinoid system, a vast neurochemical network that keeps the body in a state of balance (homeostasis). Delta 8 THC and delta 9 THC share a similar mechanism of action; in other words, they both engage with the CB1 receptors in the brain — the main reason both compounds can get the user high.

However, the main contrast is in their chemical bonds. Delta 8 THC has a double bond on the eight carbon chains, while delta 9 THC has the same double bond on the ninth carbon chain.

This, in turn, causes the aforementioned difference in their potency.

To experience the same high intensity as with delta 9 THC, you’d need to take twice as much delta 8.

Delta 8 THC is also picked by users who are sensitive to the psychoactive effects of THC. In higher doses, THC may elevate anxiety and cause paranoia, which is why some people choose to avoid high-THC cannabis products.

With delta 8, the incidence of these side effects is much lower.

Now back to the legal status… Is delta 8 THC legal?

Let’s have a brief overview of the federal laws and the confusion surrounding the legality of delta 8 products (including edibles, vape carts, and tinctures.)

Is Delta 8 THC Legal?

image of a wooden gavel and a hemp leaf on a white background

Cannabis websites and discussion forums are full of contradictory information on the legal status of delta 8 THC.

While Delta 9 THC is explicitly prohibited — it comes from marijuana, which has more than 0.3% of the compound — other cannabinoids may be exempt from the federal provisions.

Why?

Because the 2018 Farm Bill made a clear distinction between hemp and marijuana.

While both plants are similar in their genetic makeup, they come with different concentrations of delta 9 THC.

Marijuana is high in THC, whereas hemp only contains 0.3% or less. The 2018 Farm Bill states that “all derivatives of hemp (cannabinoids, analogs, etc.) are completely legal in the United States as long as they do not contain more than 0.3% of THC.”

The best part about making delta 8 THC products?

They can be extracted from hemp.

To answer the yet unasked question: yes, extracting delta 8 THC directly from hemp is super cost-prohibitive due to the low concentrations of delta 9 in hemp.

But like we said, creative entrepreneurial souls have come up with methods that enable efficient delta 8 extraction — using less conventional methods than the pressurized CO2.

Before we get down to how delta 8 THC is made, let’s focus on how the DEA treats the cannabinoid. As with all new cannabis products, delta 8 extracts have already raised controversies among government officials.

What Is the DEA’s Stance on the Legality of Delta 8 THC?

The DEA includes delta 8 THC on its list of controlled substances (updated August 2020) under “tetrahydrocannabinol.”

However, section 12619(b) of the 2018 Farm Bill — it’s very last provision — carved out “tetrahydrocannabinol in hemp.”

This includes any type of THC from hemp plants that contain 0.3% of THC or less. Hemp-derived products (including those containing delta 8 THC) are legal on a federal level, while marijuana remains illegal. Delta 9 is only legal in states that have legalized recreational marijuana.

Although it’s unlikely that the USDA intended to create a loophole for people to get high legally, it’s a fact that delta 8 THC may have gone under the radar. 

In their case against delta 8 THC, the DEA implies that “the [2018 Farm Bill] does not impact the control status of synthetically derived tetrahydrocannabinol (for Controlled Substance Code Number 7370) because the statutory definition of ‘hemp’ is limited to materials that are derived from the plant Cannabis sativa L. For synthetically derived tetrahydrocannabinol, the concentration of delta 9 THC is not a determining factor in whether the material is a controlled substance. All synthetically derived tetrahydrocannabinol remains a schedule I controlled substance.”

Does it mean that the DEA has just burst the bubble of people hoping to experience a legal high?

Lawyers beg to disagree.

What Are Lawyers Saying?

The legal landscape for delta 8 THC products is contradictory at best.

However, lawyers believe the Farm Bill is on their side. According to people specializing in cannabis laws, delta 8 THC is federally legal as long as it is extracted from hemp.

The process manufacturers employ to obtain delta 8 from cannabis fits in the definition of “organic extractions.”

In order for the delta 8 THC to be extracted synthetically, a group of lab workers would need to create this compound in laboratory conditions using synthetic ingredients and specialized lab equipment.

Current extraction methods are anything but synthetic. Of course, they require several toxic chemicals to convert other cannabinoids to delta 8 THC, but 

Below we shed more light on how delta 8 THC is made — and how it affects its legality.

Factors that Determine the Legal Status of Delta 8 THC

All cannabinoids start from CBGA (cannabigerolic acid). The enzymes in the cannabis plant use CBGA to synthesize CBD, THC, CBC, CBDV, and more.

However, there are no enzymes that could allow cannabis to directly convert CBG into delta 8 THC.

Delta 8 is the byproduct of delta 9 THC’s degradation. Most of the delta 9 THC converts into CBN (cannabinol), which is approximately 10% as potent as THC. A very small amount of delta 9 transforms into delta 8.

Even marijuana strains that are high in THC have about 1% or less delta 8 THC by weight.

Manufacturers looking to yield high quantities of delta 8 THC can extract it using two methods:

  • Convert delta 9 THC into Delta 8 THC – this is the most efficient method, but it’s only legal in states with legal recreational markets since it uses marijuana plants as the source.
  • Convert CBD to Delta 9 THC and then to Delta 8 – it’s a more complicated method but legal on a federal level.

Extracting delta 8 THC using a conversion process from CBD requires the use of solvents, reagents, and acids. Therefore it calls for knowledgeable lab technicians and high-tech equipment to ensure the bases are properly purged of any toxic chemicals. Otherwise, the final product can be dangerous for your health.

How to Make Sure Your Delta 8 Product Is Legal

  • Purchase from reputable brands that can ensure proper certification (third-party lab reports) to prove their product’s purity and ensure the delta 9 THC content at 0.3% or below.
  • Use hemp-derived delta 8 THC for a federally legal product.
  • Order marijuana-derived delta 8 THC from cannabis dispensaries if you live in a state with a recreational marijuana market to ensure the highest quality.
  • Watch out for scammy companies churning out low-quality extracts that contain higher than federally-approved amounts of delta 9 THC.
  • Don’t buy delta 8 THC on the cheap; it’s not a “cheap” product, and nothing indicates it will change anytime soon.

Is Delta 8 THC Legal in My State?

close up image of a glove focusing on United States with hemp leaves on top of it

Delta 8 THC is legal on a federal level, but as with any federal law, states can accept the provisions of the 2018 Farm Bill or place their own restrictions on the legality of delta 8 THC products.

Currently, 12 states have decided to ban delta 8 THC. The list includes:

  • Alaska
  • Arizona
  • Arkansas
  • Colorado
  • Delaware
  • Idaho
  • Iowa
  • Mississippi
  • Montana
  • New York
  • Rhode Island
  • Utah

How to Find a Trusted Delta 8 Vendor

The Delta 8 THC space is a new and booming market. Similar to the situation of the CBD industry, it lacks regulation because the FDA hasn’t yet investigated its efficacy and safety. This scenario creates opportunities for scammy companies to thrive on the growing market, luring unaware customers with low prices, legal highs, miracle cures, and whatnot.

The first checkpoint on your list should be third-party testing. Does the company run laboratory tests for every batch of its products? If yes, what do these tests cover? Do they only list the potency of delta 8 THC, or do they also look for common contaminants and potentially dangerous additives? Third-party testing should be as detailed as possible — and proven with an up-to-date Certificate of Analysis (COA).

Another factor to consider is the source of your delta 8 product. As mentioned, marijuana-derived extracts are illegal on a federal level, but as long as your product comes from hemp, you’re in the clear. It’s important that the hemp is grown organically, in clean soil, and without pesticides or growth boosters. Such plants grow cannabinoid-rich buds and ensure higher delta 8 yields.

Last but not least, mind the company’s reputation. If you are looking to buy Delta 8 products online, you have to consider those with lots of positive reviews on third-party websites (such as Area 52 or Finest Labs) as they are a better source of delta 8 THC than companies with no history or success record among customers. You might want to consider buying D8 products online than locally as it gives you the advantage to check these details intensively.

What Are the Benefits of Using Delta 8 THC?

Delta 8 THC offers similar health benefits to delta 9 THC, but with a much lower incidence of the side effects like anxiety and paranoia.

There haven’t been many studies on the effects of delta 8, but what we know so far points us to the following benefits:

  • Pain reduction
  • Nausea relief
  • Lowered inflammation
  • Mood elevation
  • Better stress response
  • Reduced anxiety
  • Appetite stimulation
  • Neuroprotection

As researchers get a better understanding of how cannabinoids work within the body, we may soon expect the surge of studies regarding the health benefits and safety of delta 8 THC and the increase in the availability of d8 products such as edibles, tinctures, and vapes.

Final Thoughts

To summarize, delta 8 THC is federally legal as long as it is extracted naturally from hemp. Marijuana-derived delta 8 products can only be purchased in states that have legalized recreational marijuana use. The extraction method is another factor influencing the legality of D8. Products made using the natural conversion process from CBD are compliant with the provisions of the 2018 Farm Bill.

That being said, the DEA continues to hold its negative stance towards the legal status of delta 8 THC. However, their argumentation is wrong on many levels, one of them being the distinction between synthetic and natural extractions. Synthetically-derived delta 8 is nearly nonexistent, so for the time being, the majority of D8 products are legal.

So far, only 11 states have decided to ban the sale of delta 8 THC. You won’t buy it in Alaska, Arizona, Arkansas, Colorado, Delaware, Idaho, Iowa, Mississippi, Montana, Rhode Island, and Utah.

If you want to make sure you’re buying a 100% legal product, check for third-party lab reports and always buy from reputable manufacturers who can deliver the standards we’ve talked about in this article.

Nina created CFAH.org following the birth of her second child. She was a science and math teacher for 6 years prior to becoming a parent — teaching in schools in White Plains, New York and later in Paterson, New Jersey.

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