As Delta-8-THC (D8) production methods have become more widely known and accessible, the supply has increased at an exponential rate, both reducing the price and increasing its availability throughout the United States. Additionally, with this evolution in the isomerization of cannabinoids comes myriad novel cannabinoids, from naturally occurring and relatively innocuous compounds such as CBN to those that are non naturally occurring and potent, like THC-O.
In response, many states that had previously chosen to treat D8 and other cannabinoids as legal, due to a lack of comprehensive legislation, have recently decided to introduce bills that formally legalize or explicitly prohibit minor cannabinoids achieved through isomerization.
The result is a patchwork of inconsistent regulations across the United States, ultimately making business more difficult for manufacturers and retailers to conduct, while simultaneously limiting easy and affordable access to these compounds for consumers.
On May 19th, 2022, the Ninth Circuit affirmed that D8 and other cannabinoids qualify as legal products under the 2018 Farm Bill. They conclude that the items in question contain compounds that “fit comfortably within the statutory definition of hemp,” as has been claimed by proponents since this issue was brought up.
Despite this case being initially brought before the court as a trademark infringement, the argument used by the plaintiff centered around the defendant’s product being illegal. The court has denied the plaintiff's claim on the basis that the defendant's product is, in fact, legal.
Sec. 11.71.160.(f) Schedule IIIA. states “...any material, compound, mixture, or preparation that contains any quantity of the following substances or that contains any of its salts, isomers, whether optical, position, or geometric, or salts of isomers whenever the existence of those salts, isomers, or salts of isomers is possible within the specific chemical designation” is considered to be a Schedule IIIA substance and goes on to list tetrahydrocannabinols as one of such substances.
Taking their recently relaxed stance towards marijuana into account, their ban on D8 is mildly surprising but most likely stems from similar motivations as those in other states that have legalized marijuana for adult-use, such as Colorado and Oregon, as discussed below. States that have legalized and regulated Delta 9 products desire the same for any other tetrahydrocannabinols that will be distributed on a retail level.
Title 3 Agriculture. CH. 2, ART. 4.1 Industrial Hemp defines cannabis as marijuana, as well as “Every compound, manufacture, salt, derivative, mixture or preparation of such resin, tetrahydrocannabinol (T.H.C.), or of such plants from which the resin has not been extracted” in Section 3-311.
In addition, Title 36 - Public Health and Safety, Ch.2 Section 36-2512 states that “any material, compound, mixture or preparation that contains any quantity of the following...substances and their salts, isomers and salts of isomers, unless specifically excepted or unless listed in another schedule, whenever the existence of these salts, isomers and salts of isomers is possible within the specific chemical designation (for the purposes of this paragraph, “isomer” includes the optical, position and geometric isomers):” and goes on to list cannabis, with the exception of the synthetic isomer of delta-9-tetrahydrocannabinol.
This simply means that any tetrahydrocannabinol other than synthetic Delta 9 will be considered banned, including D8.
Under House Bill 1415, Section 1, Arkansas law states that any salts, isomers or salts of isomers of tetrahydrocannabinols are classified as a schedule VI substance.
Interestingly, the bill goes on to specify a number of tetrahydrocannabinol isomers to be scheduled, detailing “synthetic substances, derivatives, or their isomers in the chemical structural classes described below in subdivisions...of this section and also specific unclassified substances in...this section.
“Compounds of the structures described in this subdivision...regardless of numerical designation of atomic positions, are included...The synthetic substances, derivatives, or their isomers included in this subdivision are:(A)(i) Tetrahydrocannabinols.”
Delta-8 is illegal under California state law. Using, possessing, selling, distributing, and producing hemp and marijuana-derived delta-8 products is considered to be prohibited. While consumers cannot purchase or possess any quantity of hemp-derived delta-8, they can purchase marijuana-derived Delta-8 from a licensed dispensary.
Colorado takes a similar approach to Arkansas by specifically defining what a tetrahydrocannabinol is in Section 25a of Title 18 Criminal Code Uniform Controlled Substances Act of 2013. “ ‘Tetrahydrocannabinols’ means synthetic equivalents of the substances contained in the plant, or in the resinous extractives of, cannabis, sp., or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity, such as the following: (I) ¹Cis or trans tetrahydrocannabinol, and their optical isomers; (II) 6Cis or trans tetrahydrocannabinol, and their optical isomers; (III) 3,4Cis or trans tetrahydrocannabinol, and their optical isomers.”
Being that Colorado has legalized and regulated the sale of Delta-9 THC products for adult use, this ban is most likely motivated by the desire for established regulation of D8, similar to Oregon and Alaska.
Despite this wide-ranging legislation attempting to ban D8 derived from industrial hemp in Colorado, legal experts who have begun to focus on the particulars of the legislation have come to the conclusion that D8 is in fact legal to manufacture, distribute, and retail.
D8's legality in Colorado is due to two major discrepancies in the wording of their legislation. The first is that although marijuana is mentioned as a controlled substance under Colorado law, industrial hemp is not. Therefore, it is not covered under Section 5 of Revised Statutes Annotated Title 18 of the Uniform Controlled Substances Act of 2013 wherein.
The second is that the controlled substance analog regulations listed in Section 6(a) are inapplicable to D8 as a result of its exclusion from the Uniform Controlled Substance Act of 2013. Finally, contrary to popular belief, D8 does not qualify as a Schedule 1 as a “tetrahydrocannabinol” because of the specific exception for compounds otherwise regulated by Colorado or federal law.
Both state law in Colorado and US federal law have regulated industrial hemp. Colorado state law explicitly defines hemp. Their definition is as follows: “Cannabis Sativa, seeds of the plants as well as derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta9 THC concentration of less than .3%.”
Furthermore, as stated in the Colorado Controlled Substances Act, any legislation that would “restrict or otherwise affect regulation of…access to industrial hemp and its derivatives,” effectively cementing the legal status of industrial hemp-derived D8.
Update: In May 2021, Colorado’s Department of Public Health and Environment released a statement declaring that “chemically modifying or converting any naturally occurring cannabinoids from industrial hemp is non-compliant with the statutory definition of ‘industrial hemp product.” The statement goes on to specifically mention any process that modifies an existing cannabinoid and explicitly refers to D8.
Connecticut lawmakers passed Senate Bill 1201 in 2021, essentially providing regulatory oversight to the state’s adult-use cannabis market. Under this legislation, all forms of cannabis containing more than 0.3% of any tetrahydrocannabinol are considered marijuana.
Since Connecticut has regulations outlining provisions for the sale of medical and recreational marijuana, only state-licensed marijuana dispensaries can sell delta-8 products. Since state licensing applications aren’t yet available, delta-8 remains illegal.
Under Title 16 of their Uniform Controlled Substances Act, stating that any products containing “any quantity of marijuana or any tetrahydrocannabinols, their salts, isomers or salts of isomers and is not approved for use by the US Food and Drug Administration” Delta-8 THC is not legal.
Idaho’s House Bill 122, section 37-2701, bans all tetrahydrocannabinols, with the exception of those occurring with hemp under .3% concentration. It then goes on to specify that “synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis, and/or synthetic substances, derivatives, and their isomers with a similar chemical structure such as the following” and goes on to list various tetrahydrocannabinols.
Overall, Idaho’s cannabis laws tend to be quite stringent and this aspect is not too surprising.
With no medical marijuana program existing in Iowa, it can be expected that their legislation surrounding isomers and salts of tetrahydrocannabinols is more restrictive. Except for cannabinoids specified by rules of the board for medical purposes, all tetrahydrocannabinols, salts, isomers, and synthetic equivalents are banned.
Similar to other states listed in this section, Mississippi has decided to consider all isomers, synthetic substances, and derivatives of tetrahydrocannabinols illegal. The legislation provides an exception for synthetic cannabinoid medications dronabinol and nabilone.
Interestingly, it also provides an exception for extracts, oil, and resins with a 20:1 ratio of cannabidiol: tetrahydrocannabinol, as long as they have been diluted to a concentration of 2.5mg of tetrahydrocannabinols per milliliter. Presumably, the state of Mississippi finds that such a small amount of THC is negligible.
Title 50 of the Montana Code dictates that all salts and derivatives, isomers, and synthetic substances replicating tetrahydrocannabinols are considered “specific dangerous drugs” in Schedule 1. The legislation goes on to specify all cis, trans and optical isomers of delta 1, 3, 4, 6, and 9 tetrahydrocannabinol.
Senate Bill 49 in the state of Nevada was signed into law on June 4, 2021. It states that “Synthetic cannabinoid” means a cannabinoid that is: 1. Produced artificially, whether from chemicals or from recombinant biological agents, including, without limitation, yeast and algae; and 2. Is not derived from a plant of the genus Cannabis, including, without limitation, biosynthetic cannabinoids.” effectively outlawing any cannabinoids that aren’t directly obtained from cannabis plants.
Furthermore, the amendment to Sec. 3.5. NRS 453.139 goes on to elucidate that “‘THC’ means [: 1. Delta-9-tetrahydrocannabinol;] delta-9-tetrahydrocannabinol and any structural, optical, or geometric isomer thereof, including, without limitation: [2.] 1. Delta-8-tetrahydrocannabinol; [and 3. The optical isomers of such substances.] 2. Delta-7-tetrahydrocannabinol; and 3. Delta-10-tetrahydrocannabinol,’ cementing the definition of THC to include D8, Delta-10-THC, and Delta-7-THC.
Finally, Sec. 3.6. Chapter 557 goes on to elucidate that “A grower or producer shall not produce, distribute, sell in or offer to sell in this State any synthetic cannabinoid. 2. As used in this section, “synthetic cannabinoid” has the meaning ascribed to it in section 1 of this act,” ending any possibility of a grower or manufacturer being able to produce, distribute or retail D8.
In May of 2021, New York amended Title 10 (Health) of the Official Compilation of Codes, Rules, and Regulations of the State of New York, which is responsible for regulating the processing and retail sale of cannabinoid hemp.
By adding Part 1005 to the regulation, they specify that hemp manufacturers may “not use synthetic cannabinoids, or Δ8-tetrahydrocannabinol or Δ10-tetrahydrocannabinol created through isomerization, in the extraction or manufacturing of any cannabinoid hemp products,” expressly prohibiting D8 that is created through isomerization.
This is the most comprehensive ban that has been implemented as of yet, in as much as it addresses the specific issue of isomerization of CBD into D8 that is at hand while not simultaneously banning naturally occurring isomers of THC in products.
In Section 3 of the “Uniform Controlled Substances Act,” Rhode Island defines “marijuana” as the plant itself, any resins extracted, as well as every compound, isomer, derivative, and salt existing in the plant. According to this definition, D8 and all other tetrahydrocannabinols are considered controlled substances.
In Mid-April 2021, Vermont’s Agency of Agriculture released a statement declaring the manufacture, possession, and sale of D8 to be banned under state law. Despite D8 existing as a naturally occurring compound in the cannabis plant, the state's cannabis control quality administrator, Stephanie Smith says that the reasoning behind the ban is due to it being “not naturally occurring.” By considering D8 a “synthetic cannabinoid,” the sale of D8 would violate the state's law banning synthetic cannabinoids in hemp.
Chapter 37 of the Utah Controlled Substances Act specifies that tetrahydrocannabinols and their synthetic equivalents, derivatives, and isomers are considered controlled substances, regardless of the numerical designation of atomic positions covered. Regardless, the legislation does specify Delta-1(9), Delta 6, and Delta 3,4.
Washington classifies delta-8 as a Schedule I controlled substance under its Uniform Controlled Substances Act. This status was confirmed by the Washington State Liquor and Cannabis Board (WSLCB), explaining that the production and manufacture of delta-8 products requires a synthetic and chemical process, which goes against the state’s hemp laws. However, the rules surrounding the use and possession of delta-8 products are unclear.
States That Have Introduced Legislation Banning D8
In February 2021, state Rep. Mike Holmes introduced a bill banning an addictive, opioid-like antidepressant. After passing the House unanimously, an amendment banning Delta-10 THC and D8 was added to the bill.
Subsequently, Alabama’s cannabis industry has expressed its discontentment with this veiled attempt to ban D8, citing that no deaths have been attributed to it and cannabis’ 's proven safety profile in comparison to some over-the-counter medications. The Senate Judiciary Committee has approved the change, but the Senate and House have yet to vote on the changed bill.
In 2021, House Bill 1045 passed, effectively banning the use, possession, sale, distribution, purchase, and production of hemp-derived Delta-8. This bill amended an existing hemp bill to include Delta-8 as a controlled substance alongside Delta-9. Marijuana and marijuana-derived Delta-8 are also considered controlled substances under state law.
In March 2021, Oregon legislators released a statement indicating their intent to regulate D8 through the Oregon Liquor Control Commission, the same body that establishes and enforces regulations for the adult-use cannabis industry in Oregon. Considering this state's embracement of cannabis legalization and reputation as a center for cultivation and extraction, it is a little surprising to hear that Oregon is considering banning D8.
However, this legislation may be more reflective of a desire for comprehensive regulation and consumer protections to be instituted. If that is the case, then sensible regulation of D8, such as that which exists for Delta-9, is the proper path forward.
States That Have Indicated They are Likely to Pass Legislation Banning D8 in the Near Future
Though Georgia does have a limited medical marijuana program, their banning of synthetic cannabinoids in May 2010 indicates an attitude toward synthetic equivalents of tetrahydrocannabinols that may lead them to introduce legislation banning isomers and derivatives of tetrahydrocannabinols.
With relatively stringent medical marijuana regulations, including no smokable flower and a limited list of qualifying conditions, and a ban on synthetic cannabinoids since August 2010, it is likely that Louisiana will attempt to introduce legislation banning D8 in the near future.
Considering Indiana’s complete lack of a medical marijuana program, it is a likely candidate for creating legislation aimed at banning the manufacture and distribution of D8.
Synthetic cannabinoids have been banned in Kansas as of March 2010, making it one of the first states to introduce legislation that outlawed synthetic cannabinoids. Taking this into consideration, it is quite plausible that they would pass legislation banning D8.
On March 25, 2021, the Governor of Kentucky approved and signed House Bill 307, declaring that marijuana “means all parts of the plant Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant,” intending to outlaw all isomers of THC.
In addition, on April 19, 2021, the Kentucky Department of Agriculture sent a guidance letter to hemp license holders reiterating their position on D8 and even purports that D8 is a schedule I controlled substance under federal law. However, the federal government has declared the term “cannabis” to not include hemp, and therefore hemp and its derivatives remain legal in Kentucky.
Furthermore, Kentucky Hemp Association has retained counsel that is currently suing Kentucky for a temporary injunction against the D8 raids that have been happening and demanding that the Kentucky Department of Agriculture letter indicating D8’s controlled substance status be rescinded.
Similarly to Kansas and Louisiana, passed legislation banning synthetic cannabinoids in July 2010. Bearing this in mind, it is safe to say that the probability that Missouri will introduce legislation banning D8.
Nebraska does not currently have any approved program for the public to access cannabis, including medical marijuana, and has only introduced medical marijuana legislation as of March 30, 2021. Considering their stringent views towards cannabis, we feel Nebraska is a prime candidate to begin creating legislation banning all tetrahydrocannabinols, including D8.
Retail: LegalDelta-8 is legal in North Carolina and is not categorized as a controlled substance under state law following the passage of Senate Bill 352. The bill amended the North Carolina Controlled Substances Act, excluding all hemp-derived cannabinoids, including delta-8.
Similar to North Carolina, South Carolina does not provide access to medical marijuana for its residents and there is a good chance that they will choose to ban D8 and other tetrahydrocannabinols.
Outlawed synthetic cannabinoids in July 2010, no MMJ program. Having banned synthetic cannabinoids in July 2010 and refusing to provide a legislative framework for citizens to have medical access to marijuana, Tennessee is quite intolerant of cannabis. That being said, we anticipate that this state will eventually create laws to ban D8.
Lacking any medical marijuana program or discussion of one, it is probable that Texas will institute legislation aimed at banning D8 and other tetrahydrocannabinols. Historically, the state tends to have an unfriendly attitude towards cannabis and a similar stance towards D8 can be expected.
Wisconsin’s medical marijuana program is limited to CBD products and provides no framework for THC products. Taking their previous perspective on tetrahydrocannabinols, the likelihood of them instituting some sort of ban on D8 and other tetrahydrocannabinols is high.
Wyoming is one of the few remaining states to not pass legislation decriminalizing marijuana and there is no discussion on instituting a medical marijuana program for residents. The states preceding outlook on cannabis dictates that they will create a ban on D8 at some point.
States That Have Enacted Legislation to Provide a Framework for the Legal Sale of D8
Florida
Manufacture: Legal and Regulated Possession: Legal and Regulated Distribution: Legal and Regulated Retail: Legal and Regulated
Florida’s Department of Agriculture and Consumer Services oversees hemp production and released the following statement: “Delta 8: At this time any hemp product intended for human or animal ingestion or inhalation which is sold in Florida must comply with all Florida statutes and rules. Any hemp or hemp extract products offered for sale or sold in Florida must comply with all labeling rules and have a certificate of analysis that shows a total THC (THCA x .8777 + THC Delta 9 = total THC) content of 0.3% or less.
Any hemp or hemp extract product that does not comply with all statutes and rules is subject to enforcement and possible destruction by the Florida Department of Agriculture and Consumer Services.” This statement certifies that D8 does not run afoul of any Florida statutes and, in fact, certifies that the manufacture and distribution of D8 is allowed in Florida.
Despite Florida’s conservative legislative trends, their public policy towards D8 is progressive and ultimately beneficial. By establishing a structured and comprehensive regulatory framework for manufacturers and distributors to follow, Florida is enabling a burgeoning industry to continue to grow and evolve, while simultaneously ensuring the safety of buyers by mandating certificates of analysis for all D8 items sold.
States That Have Introduced No Legislation About D8 and Have Not Indicated Intent to Do So in the Near Future
Hawaii
Illinois
Maine
Maryland
Massachusetts
Michigan
Minnesota
New Hampshire
New Jersey
New Mexico
North Dakota
Ohio
Oklahoma
Pennsylvania
South Dakota
Virginia
West Virginia
The Bottom Line
Looking to the future, one potential solution is legislative reform on the federal level. Through the Ninth Circuit’s recent decision, the federal government has explicitly detailed that the isomerization of CBD to obtain related cannabinoids is lawful under the 2018 Farm Bill, thus eliminating any confusion as to the legality of cannabinoids like D8.
Furthermore, such legislation gives the federal government the opportunity to introduce mandates for the manufacture, transport, and sale of all D8 products, such as requirements for certificates of analysis (COA), seed-to-sale tracking systems, and the establishment of safety levels and guidelines for contaminants and solvents.
Florida has already introduced such legislation and can provide a foundational template for a nationwide set of regulations aimed at keeping consumers safe and businesses thriving.
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