Delta 8 THC has become a popular product available in many states and in many local retail stores. As the product has grown in popularity, there has been some misinformation and misunderstanding about Delta 8 THC and its legality. Delta 8 is an isomer of Delta 9 THC, which is the main psychoactive ingredient in marijuana. Manufactures, retailers, and those who use Delta 8 believed that the product is legal under the 2018 federal Farm Bill, but this position is not held by all, so those who sold and consumed Delta 8 were operating in a gray area.
A recent letter from the United States Department of Justice Drug Enforcement Administration (“DEA”), however, provides much needed clarity to the issue. In a September 15, 2021 letter to the Alabama Board of Pharmacy, the DEA concluded that Delta 8 is not a controlled substance that is to be regulated under the Controlled Substances Act if two conditions are met. First, acknowledging that Delta 8 “can be produced synthetically from non-cannabis materials,” the DEA stated that Delta 8 tetrahydrocannabinol (THC) derived from hemp that is naturally produced (and not synthetically produced) is a requirement for Delta 8 to be excluded as a controlled substance. Second, the DEA stated that the delta-9 tetrahydrocannabinol concentration must be less than “0.3 percent on a dry weight basis” in accordance with the federal definition of hemp. See 7 U.S.C. 1639o(1).
Therefore, according to the letter from the DEA, Delta 8 is not considered a controlled substance subject to the Controlled Substance Act as long as the product 1) is derived from hemp and 2) does not contain more than 0.3% Delta 9 THC. The DEA letter clarifies some of the gray area surrounding Delta 8 and such that the product made from hemp is permissible and a product made from non-hemp materials is illegal.
The attorneys at Chilivis Grubman are actively representing retail clients on this issue. If you need assistance, please contact us today.
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