What is the Legal Status of Delta-8 THC?

Joe Evans
Joe Evans - Content Writer

May 23 2021 - 4 min read

Recreational and medical cannabis legalization has come a long way since California voters approved the medical marijuana Compassionate Use Act of 1996, Here in 2021, 15 states have legalized adult recreational cannabis markets and 36 states have established regulated medical programs of their own. Still some jurisdictions in the country have yet to come around on the money-making and medical potential of the cannabis plant.

An outdated Reefer Madness-era federal prohibition is part of the reason why legal, hemp-derived CBD has exploded into a multi-billion dollar industry. Consumers want the benefits of cannabis CBD without the worries of breaking local laws and facing prison for trying to take the edge off symptoms of medical ailments. Hence hemp.

Medical cannabis patients living in more restrictive states are seeking a similar prosecution-exempt alternative that will replicate the psychoactive effects of THC-rich cannabis without the risk of arrest. That’s where Delta-8 comes in!

A keen watcher of the headlines will know that Delta-8 THC has been stirring up drama recently, but still not know what Delta-8 THC actually is. How is Delta-8 different from other types of THC? Why are some states banning the substance, while others are greenlighting Delta-8-infused products to hit the shelves of their stores? We asked ourselves the same things.

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What Exactly Is Delta-8 THC?

While Leafwell has gone into detail before about the exact chemical in’s and out’s of Delta-8 THC, what that molecular difference does, and science behind why Delta-8 THC’s effects are so beneficial, it’s never a bad idea for a quick refresher.

Delta-8 is considered a “minor cannabinoid.” It has milder psychoactive effects compared to the standard Delta-9 THC found in high-THC cannabis strains. Without all that Delta-9 THC disruption,  Delta-8 THC  is just as effective at easing pain and discomfort associated with many medical marijuana qualifying conditions. The milder mind-altering effects of Delta-8 THC make it a great option for healthcare professionals and parents and guardians seeking to help kids with cancer manage their symptoms through therapeutic cannabis products free from potentially disruptive psychoactive effects.

Delta-8 THC has even been proven to be more shelf-stable than other THC-rich options, which makes it ideal for use in topical creams, patches, vape cartridges, and edibles without fear of potency fading after a short time.

Finally, Delta-8 THC is an attractive option for cannabis patients dealing with mental health conditions, such as anxiety disorders and bipolar disorder, that might be worsened by standard THC-heavy cannabis consumption.

So what is all the fuss about? Why have states like Alaska, Arkansas, Arizona, Colorado, Delaware, Idaho, Iowa, Mississippi, Montana, Rhode Island, and Utah all banned Delta-8 THC entirely?

Medical benefits of Delta-8 THC

The Legal Gray Area

Because cannabis remains federally illegal,  the legal status of Delta-8 remains complicated.

Outside the handful of states mentioned above, Delta-8 THC should be perfectly legal all across America. After all, the U.S. government actually holds the patent for converting CBD into Delta-8. And the 2018 Farm Bill legalized all hemp production and everything in the composition of hemp products, as long as the levels of standard Delta-9 THC remain below 0.3 percent.

So since hemp-derived CBD is legal and Delta-8 is derived from hemp CBD, it should be perfectly legal, right?  Arguably, that’s correct. Right now, Delta-8 THC sits in a legal gray area, a de facto status of legality that many states see as a quasi-legal loophole. The perception that Delta-8 THC has slipped through the regulatory net is why some jurisdictions are working so hard to close it.

Cannabis Laws

Pending Delta-8 Legal Battles

Several state lawmakers with prohibitive mindsets are campaigning to join the list of 11 states that have official legislation on the books to restrict or fully ban Delta-8 THC. Oklahoma, for example, has a bill pending that would legally define Delta-8 as cannabis and treat it to a similar standard as delta-9 rich cannabis. Alabama’s state Senate has a bill in the works that are in line with the Oklahoma effort to ban Delta-8 THC. North Dakota legislators recently voted to accept amendments that would change the state’s definition of THC. Michigan is considering restricting Delta-8 THC sales to licensed dispensaries. On March 31, 2021, New York state moved to legalize adult use marijuana. A little more than a month later, regulations drafted for the state’s legal cannabis market include a proposed ban of Delta-8 THC.

Other states have taken a contrary approach to their Delta-8 THC legislative efforts. Washington state’s Liquor and Cannabis Board, for example, recently put out a policy statement that declares Delta-8 THC can be legally derived from licensed cannabis instead of hemp. Oregon lawmakers have taken a similar approach. State officials are working on regulations that would create a definition for “artificially derivedcannabinoids in order to regulate Delta-8 under the state’s medical and adult-use cannabis laws.

The Bottom Line

While some states might be moving toward restricting or banning Delta-8 THC, just as many more are happy to extend the legal grey area. Cannabis brands are cashing out on the open-to-interpretation regulations.

Delta-8 products are flying off the shelves in states where standard Delta-9-rich THC is illegal or hard to access. States like Texas, for example, have a massive demand for Delta-8 products. There might come a day when Delta-8’s legality is challenged in a higher court or legislated further like Oregon and Washington states have. In the meantime,  take advantage of that legal gray area until you no longer need to!

Written by
Joe Evans
Joe Evans

Joe Evans is a journalist, writer, editor and contributor for Leafwell. He has, to date, more than 5,000 articles published online under his byline on topics like cannabis, local and National news, politics, automotive news, sports, pop culture and even a cult.

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