Delta-8 THC, Is it legal?…. It Depends

By Jordan Gertje on August 20, 2021

Justin Walsh, partner at Gleam Law, recently spoke on a Cannabis Conference webinar titled Delta-8 THC: The Latest Research, Policy, and Opportunities. Hosted by Eric Sandy, Digital Editor of Cannabis Business Times, and featuring Greg Gerdeman, President and CEO of NASHCX, LLC., they discuss where Delta-8 THC fits into the Cannabis Market today and in the future.

The webinar kicks off a more in-depth discussion of Delta-8 THC, which will take place in person at the Cannabis Conference in Las Vegas on August 24th and 26th. Gleam Law and Justin Walsh will be in attendance, so stop by Booth 128 to say hello.

Delta-8 THC is a Cannabinoid, which is a molecule produced by the cannabis plant. Delta-8 THC is a minor cannabinoid in comparison to Delta-9 THC, the psychoactive cannabinoid found in higher concentrations in cannabis. Delta-8 THC is less psychoactive and can be synthesized in a laboratory from Cannabidiol (CBD).

Justin Walsh, Head of the Litigation and Hemp/Cannabinoid Department at Gleam Law, as well as Professor of Cannabis Law and Policy at Seattle University School of Law, provides insight from a global perspective in Cannabis. Walsh provides a brief overview of current Delta-8 THC laws, with 18 states having bans or restrictions in place, and four more in the works. Some states do not have official restrictions or bans, but are enforcing pseudo-restrictions on Delta-8 via the DEA’s Analog Act or their own Analog Act.

Does Delta-8 THC fall into a loophole or is it subject to the Analog Act?

According to Gerdeman’s definition of the Analog Act of 1986 , “if it is substantially chemically similar to something that is Schedule 1 or Schedule 2, it is also prohibited.” The purpose of this act was to assist the government in combating “underground chemists,” who might change one or two atoms of a molecule in order to play with the legality of a substance.

Greg Gerdeman is a Brain Scientist turned Cannabis Industry Entrepreneur, who provides a chemical breakdown in the discussion. He has a PhD in pharmacology and has focused on Cannabinoids and how Marijuana works in the brain for the past 25 years. Gerdeman gave his perspective that by definition, “Delta-8 THC, as a molecule, is an Analog of Delta-9,” classifying Delta-8 also as Schedule 1. However, Gerdeman and Walsh agreed that Cannabis should not be classified as a Schedule 1 or 2 substance due to the possibility of medical use.

Under the 2018 Farm Bill, Cannabis-derived hemp products are federally legal to sell and use. When Delta-8 THC is derived from CBD extracted hemp plants it allegedly provides a “high” distinct from Delta-9, while still falling under the 2018 Farm Bill’s definition of “hemp.” Thanks to this legal loophole, Delta-8 is being sold across the country as a legal way of getting high.

Walsh offered clarification on the Analog Act versus the 2018 Farm Bill, stating “If you have a law that comes after a previous law, it’s assumed that congress knew what they were doing when they enacted that law.” According to the Farm Bill any derivatives of Hemp are legal, meaning you can extract Delta-8 directly or take CBD and do whatever you want with it, as long as it is derived from Hemp. This loophole clearly contradicts the DEA’s interpretation of the Analog Act, paving the way for “judicial interpretation that is supposed to give effect to both of those,” says Walsh. “Most courts come down to extracted Delta-8, which is not economically feasible to do large scale extractions, versus synthesized Delta-8, taking legal CBD and changing it,” Walsh adds.

Is Delta-8 THC compatible with a licensed business plan, or is it a case of wait-and-see?

Gerdeman suggests that “it is a case of wait-and-see right now. There isn’t a lot of research on Delta-8, but there is a lot of talk. The issue is that it is not one thing.” Delta-8 is a chemical product that is chemically altered from other naturally occurring cannabinoids rather than extracted directly from the plant. As Delta-8 is cooked in acid, synthesis is taking place. “Creating Delta-8 from CBD Isolate is really easy to do, but it is harder to get it pure, and cleaner,” offers Gerdeman. Without oversight and licensing in the marketplace, it is impossible to know what is out there on the market.

Most states that regulate Delta-8 currently have strict chemical and labeling requirements to ensure the product’s safety. Gerdeman believes “Cannabis is safe, and needs to keep bringing in legitimate people and regulations in order for the plant to stay legitimate.”

“Delta-8 is just one part of a much longer story, which is the legalization of Cannabis,” Eric Sandy.

Conversations about Delta-8 THC will continue at the Cannabis Conference, which will be held August 24th through the 26th at the Paris Hotel in Las Vegas, NV.
Stop by to speak with Justin Walsh and other associates of Gleam Law at Booth 128.

Check out the Webinar here: