Is Delta 8 Legal in the USA?

The Legalities of Delta-8 are quickly changing, and below is an honest approach to provide the transparency you expect from Dharma D8, however, this should not be considered legal advice and you should always check your local laws. Report your legitimate new legal findings by contacting us for considering to add your submission.

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Is Delta-8 Legal?

Delta 8 THC Legal Updates

Updated 5/13/2021

On 5/13/2021, president of the US Hemp Roundtable, Marielle Weintraub, spoke on the Delta-8 Debate during her interview on the Let's Talk Hemp Podcast with Morris Beegle.  

SHOW HIGHLIGHTS:

  • @14:55 - The US Hemp Authority will not certify Delta-8 Products
  • @15:10 - Answers "What is a synthetic cannabinoid?"
  • @20:13 - Acknowledges "intoxicating" and "euphoric" as good terms when referencing Delta-8 Products
  • @21:19 - Affirms Delta-8 shouldn't be illegal
  • @21:37 - Seen some new clinical data on Delta-8 and its future uses
  • @22:55 - Main goal is to have a legal market, according to FDA, for hemp and hemp-derived products.  

 

Below is the full interview.

The US Hemp Roundtable has weighed-in on the matter of the legalities for Delta-8, along with naming the specific bills aimed at the Delta-8 market.

The Agricultural Marketing Service (aka AMS), which is a representative bureau from the USDA, has a position for its final rule because now that the comment periods have been completed. The final rule was decided on 1/19/2021 and goes into effect on 3/22/2021.

What did the final rule say about Delta-8?

Delta 8 didn’t appear much in the final rule, but was downplayed as “Delta-8 THC only exists in a trace amount”, “Delta-8 THC would basically be undetectable”, and that it “occurs at a level that is roughly 1000 times less than Delta-9 THC.” Effectively they’re saying: it’s found in such small quantities, that it is not a priority for regulation.

On page 89 they state, “Delta-8 THC is unrelated to the 0.3 percent delta-9 THC limit…”

Therefore, Delta-8 isn’t Delta-9.

What about total THC?
The AMS actually go to great lengths to discuss how they are going to be using the total THC and not the THCA. That happened very often in the Farm Act of 2014 where you would only look at Delta 9-- now you have to look at total THC and not just Delta 9.

So that makes the 0.3% THC more difficult to reach because many cultivars go north with a total THC about 1%.

The 1% THC is a very interesting thing that is peppered throughout this final rule simply because considering the total THC, with the previous rule, this created the presumption of negligence. Regarding that, if you grew more than 0.5 percent Delta 9, that would be a presumption of negligence and exposed farmers to unreasonable risk. So the AMS took that to heart.

According to their position, the total THC aspect, for a farmer who fails on the Delta 9, they are able to retest. In essence, they've changed what it means to be negligent in the total THC equation. Now the total THC for negligence is 1%, which is more lenient.

In the document (on page 22) they state:

This final rule specifies that hemp producers do not commit a negligent violation if they produce plants that exceed the acceptable hemp THC level and use reasonable efforts to grow hemp and the plant does not have a THC concentration of more than 1.0 percent on a dry weight basis.

Now they have moved this up from the .5% to the 1% which will provide wide-coverage for all farmers growing the traditional CBD cultivars which are 20:1 CBD to THC ratio. Therefore they do bump up against the 1% total THC which will now be fine.

What about DEA Testing?
The DEA doesn’t have authority to test if cannabis is de-scheduled from the Controlled Substances Act and the Moore Act becomes the law of the land, however, the DEA now allowing for remediation and with them improving the THC negligence threshold from 0.5% to 1.0%, the DEA has advanced their thinking as it concerns testing.

Under the last rule, it was terrible. With the last rule, the DEA wanted to essentially just come in and shut it down so you're guilty of marijuana. Especially if you’re over the .5%, you were not allowed to remediate. You had to destroy the hemp.

You don't have to destroy anymore. Now you can actually remediate. So if you test hot -- say you're over the .3% -- what do you do?

On page 30 of the final rule, it states:

Hemp producers should have the opportunity to  remediate non-compliant crops in order to minimize financial risk associated with the loss of  investment in their hemp crop. For this reason, this final rule allows remediation activities,  either disposing of flower materials and salvaging the remainder of the plant or blending the entire plant into biomass plant material.

You’re able to remediate your crops instead of destroying them all if they come in hot under this final rule.

Is Delta 8 THC Legal?

Delta-8 is federally legal and is only prohibited in a handful of states. The wording of the 2018 Farm Bill allows for the use and sale of delta-8 THC only if it is derived from hemp. All products, though, must meet the standard of being at ≤ .3% delta-9 THC, in order to be federally legal.

There had been speculation during the past couple years as to whether delta-8 THC was in fact meant to be included in the .3% THC mandate, since after all, delta-8 THC is a psychoactive cannabinoid found in hemp plants. However, the latest final rule by the USDA made it clear that delta-8 THC is unrelated to the ≤ .3% delta-9 THC limit, and the USDA doesn’t seem to be concerned with delta-8 THC at all.

Is Delta 10 THC Legal?

Delta-10 had remained in a legal gray zone since the passing of the 2018 Farm Bill as the DEA has stated:

For synthetically derived tetrahydrocannabinols, the concentration of 9 -THC is not a determining factor in whether the material is a controlled substance. All synthetically derived tetrahydrocannabinols remain schedule I controlled substances.

The DEA enforces the law; they don’t make new laws. So when the USDA states in their 2021 final rule that delta-8 is “unrelated” to the THC limits (of being ≤ .3% THC), though, the DEA’s 2020 Implementation of the Agriculture Improvement Act of 2018 plan contradicts that, we can understand that there’s room for confusion. Further, the DEA has never stated how they define “synthetically derived tetrahydrocannabinols” which makes the matter even more confusing.

Is Delta 11 THC Legal?

Delta-11 falls into the same questionable category as Delta-10.  The USDA’s final rule doesn’t specifically mention Delta-11 THC, but if you take the learnings from other members of the tetrahydrocannabinol family, such as delta-8, it suggests that Delta-11, too, is not a priority for regulators.

Is THCP legal?

The cannabinoid, Tetrahydrocannabiphorol (THCP), has been found to be 33 times as potent compared to delta-9 THC. Legality-wise, this phytocannabinoid falls into the same category as the Delta-10 and Delta-11: since is a natural cannabinoid found in industrial hemp, it is treated as such under the 2018 Farm Bill which makes THCP legal as long as the product is under the .3% delta-9 THC limit.