Will Delta 8 Be Banned?


Note: this answer is not to be intended for legal advice, but rather to give you a perspective of latest information regarding the potential ban of Delta-8 products.

Final Rule from USDA

Until recently, customers had been wondering whether delta-8 THC would be banned, if it wasn't banned already. This stemmed from the dubious reports by governing bodies, and it seemed even more of a legitimate concern as vape carts became prohibited products to ship via USPS (alarming some of a possible Delta 8 Shipping Ban) due to the recent amendments of the Consolidated Appropriations Act, 2021 which was signed into law on December 27, 2020.

On January 19, 2021, the USDA made their final rule which goes into effect on March 22, 2021. The final rule from the USDA suggests that delta-8 THC products are not a priority for regulation, at this time.

Towards the end of the 2020 year, the DEA released an interim rule which addressed the legality of hemp derivatives, such as delta-8 THC, by stating:

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.

This statement challenged a lot of the interpretations of the percent rule of ≤ .3% delta-9 tetrahydrocannabinol concentration, which is stated in the 2018 Farm Bill. DEA's interim rule broadened the determining factor as "All... tetrahydrocannabinols remain schedule I controlled substances," though later, the USDA's final rule considered all comments, including the DEA's, and determined that, “Delta-8 THC is unrelated to the 0.3 percent delta-9 THC limit…”

Everything considered, it seems doubtful that delta-8 will be banned at the federal level.

Delta-8 THC

Delta-8 THC products have been popping up in the market, which has alarmed some regulators due the Delta-8 being psychoactive and it providing similar benefits to the user as delta-9 THC. With the 0.3% Delta-9 THC threshold being in place since the 2018 Farm Bill became the law of the land, Delta-8 producers were alarmed to learn that the DEA's interim rule would put them in jeopardy for shipping those types of hemp products across statelines.

Hemp-derived Delta-8 THC

Derivatives of hemp such as Delta-8 are commonly covered by news organizations, and in Delta-8-THC is legal—but is it safe? What to know about ‘weed lite’, Michael Kaplan says:

A hemp derivative known as Delta-8 is gaining steam among potheads. And thanks to an obscure loophole, it may be legal in many states.

Though, it doesn't seem to be a loophole. In the USDA's final rule on federal-level questions about Delta-8, they also confirmed, "Delta-8 THC is unrelated to the 0.3 percent delta-9 THC limit…” The USDA's final rule was published 1/19/2021.

Regarding the question of hemp-derived Delta-8 THC becoming banned and now learning about the USDA's final ruling, have you ever seen a government agency go completely 180 degrees on a topic all in the span of a year? Neither have we, and it seems doubtful that hemp-derived Delta-8 THC would be banned, at the federal level, moving forward.

Regulations on hemp-derived products has come a long way in the past decade, and it seems doubtful that such a ban on Delta-8 products would even be a consideration at this point in the game.

The Delta 8 ban of 2021 doesn't seem plausible; theDelta 8 ban DEA was pushing stirred the controversy, was considered by the USDA's AMS during the comment periods, but ultimately didn't make any significant impact in the final rule (other than being more leniant on farmers by changing the federal delta-9 THC negligence threshold from 0.5% to 1.0%).

Other Cannabinoids

Besides the Delta-8 minor cannabinoid, there's over a hundred of cannabinoids to be concerned with, including, Delta-9 THC within hemp plants. The hemp industry has focused on minding the tetrahydrocannabinols in hemp, though, regulators are specifically regulating one: delta-9 THC content.

Law enforcement agencies follow the law. Hemp suppliers do, too, and now that the final rule goes into effect on March 22, 2021, the chatter of a possible ban on these products seems to be closed for the time being.