Delta 8: What Is It, and Is It Legal?

There are about 158.8 million people using Marijuana world-wide. Popularity and sales in the United States are increasing. Projections are that marijuana sales in the U.S. will reach 8.7 billion in 2021. This is in part due to 85% of adults in the United States believing the product has valid medical benefits.

With the popularity of THC use in the United States growing, many people may not realize that some forms of THC are illegal. There are other legal forms are available. This is due to different cannabis products containing variations of THC.

Some seeking a loophole around marijuana laws have found Delta 8 to be the answer. Products containing Delta 8 THC are gaining popularity and the legal loophole eliminates the risky use of black-market items.

What is Delta 8?

Delta 8 THC occurs naturally in the cannabis plant. Delta 9 THC is the most abundant compound in the plant. There are only trace amounts of Delta 8, making it so minor that cannabis enzymes do not produce it.

The creation of Delta 8 happens when Delta 9 THC oxidizes, degrading into Delta 8. If it continues to degrade it becomes cannabinol (CBN). The difference between Delta 9 and Delta 8 is only one molecule.

If you want to get into science, Delta 8’s molecular bond is on the 8th carbon chain. Delta 9’s molecular bond is on the 9th carbon chain.

Delta 8 THC (short for tetrahydrocannabinol) has a unique way of interacting with your body. The benefits offer surprisingly enjoyable wellness benefits without a strong feeling of being high. With its elimination of the psychoactive effects, it is becoming popular in health and wellness products.

Delta 8 distributes some similarities to Delta 9. It stimulates the appetite, reduces nausea, and soothes pain. Users of Delta 8 find it to be less likely to provoke anxiety and less sedating, leaving them more clear-headed after use.

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Delta 8 v. CBD

Delta 8 and CBD have comparable properties, but they have notable differences. One major way they differ is psychoactive results. CBD does not produce any euphoric effects, but Delta 8 does. Those feelings of euphoria are weaker than typical with THC.

Both CBD and Delta 8 can help induce sleep, reduce anxiety and stress, relieve pain. They also stimulate the appetite. CBD and other byproducts of hemp have protection under the Agricultural Improvement Act of 2018. It is that same Act that provides the authorization for use of Delta 8. The legal usage varies from state to state for both medical and leisure purposes.

How is Delta 8 Legal?

Delta 8 is THC, the cannabinoid in marijuana. THC is a federally illegal substance. Other than Delta 8, all forms of THC are illegal in the United States.

Delta 8 slips under the law in the 2018 farm bill legalizing hemp. The Farm Bill made it legal to purchase and use hemp in all 50 states.

It is legal to consume hemp in all forms. This includes concentrates and extracts. CBD, the main hemp compound, can be consumed in many ways.

The bill regarding hemp production makes everything in the genetic makeup and anatomy of hemp, other than Delta 9, legal. If Delta 9 THC appears in the hemp the percentage must be lower than 0.3%. Because Delta 8 is not shown in the bill, it is technically not in violation of federal law.

This is where people are determining this to be a legal loophole. It is only Delta 9 that has the illegal designation in the bill, and Delta 8 is not mentioned. While Delta 8 may not be a violation of federal law, it is illegal in Utah, Rhode Island, Montana, Mississippi, Iowa, Idaho, Delaware, Colorado, Arkansas, Arizona, and Alaska.

At this time Delta 8 is legal in all other states. That may change at any time if a state’s legislation makes a decision to classify Delta 8 as a controlled substance. You will also want to stay up-to-date on legal changes because it is possible the DEA may make changes to the bill affecting Delta 8’s legal status.

Implementation of the Agriculture Improvement Act of 2018

The Implementation of the Agriculture Improvement Act of 2018 is a rule of the Drug Enforcement Administration. The purpose of this interim final rule is for codifying the changes in the act within DEA regulations. Those changes are relative to DEA control over marijuana, tetrahydrocannabinol, and other relative constituents to marijuana.

The portion of this implementation that forms the Delta 8 loophole is the modification to 21 CFR 1308.11(d)(58), which defines “marijuana extract.” In that definition, it limits extracts to those containing greater than 0.3% delta-9-tetrahydrocannabinol on the basis of dry weight.

The act states that marijuana does not include hemp. It states that hemp is any part of the cannabis plant that has a Delta 9 concentration of 0.3% or less dry weight. By making the changes to definitions of marijuana and hemp, and referring specifically to Delta 9, they have left open the Delta 8 loophole.

Marijuana and hemp are the same plants, but marijuana’s concentrations in Delta 9 are higher. Delta 8, the less potent byproduct, has been overlooked by state and federal lawmakers. It is this oversight that led marketers to jump on the opportunity to market this byproduct.

That oversight also created another loophole in which some retailers skip over purchasing a state license to sell marijuana. They feel that the farm bill protects them because they are not selling a substance under legal control.

Drug Code 7350

The determination of marijuana constituents is made using the concentration of THC in the constituent. An amendment to Drug Code 7350 was necessary for it to comply with the Agriculture Improvement Act. The new marijuana definition is that it contains one or more cannabinoids derived from any cannabis plant that contains more than 0.3% Delta 9 tetrahydrocannabinol dry weight.

The Delta 8 Grey Area

The DEA in 2020 made a determination that any product exceeding the 0.3% threshold of Delta 9 is illegal, including products processed to increase potency. This means if you process hemp and it exceeds the 0.3% threshold, the product is illegal.

The law states that synthesized THC is a controlled substance. They do not have to meet the Delta 9 increase above the threshold.

The production of Delta 8 creates a grey area within the law. While it is not illegal under federal law, it is illegal in 11 states. In the rest of the U.S., you may be able to side-step the law at this time, but it is possible you may not in the future.

There is a possibility that the Food and Drug Administration may regulate hemp products. While they create guidelines that are not part of the law, they do regulate production to maintain safety. Hemp products are currently on an unregulated market, which means companies are free to take whatever steps they desire when manufacturing hemp items.

Because there are no current regulations, you want to make sure you purchase your product from a high-quality producer. Check to make sure there are no toxic substances being used to dilute the formula. You want to consume Delta 8 that is free of impurities.

2021 Hemp Rule

The USDA published its “hemp rule” on January 19, 2021. The goal is to establish a domestic hemp production regulation. The effective date for this rule is March 22, 2021.

The rule builds on the interim rule of December 31, 2019. That original rule was the creation of the U.S. Domestic Hemp Production Program. The rule establishes testing requirements for plants and requires the disposal of plants that exceed the acceptable THC level.

Part of that program is to group Delta 8 and Delta 9 under one THC measurement. The intent is to have the THC measurement taken once the product is heated to activate the THC.

The Legality of Delta 8 in The Future

In Canada, cannabis is legal, but in the United States, its legality receives impact on both the federal and state level. Opinions are changing across the country. Some remain adamantly against the use of any cannabis products.

If you are using Delta 8 under the legal loophole, you will want to watch the legal activities this year closely. The Drug Enforcement Agency (DEA) is proposing regulations to classify Delta 8 THC as a schedule 1 controlled substance.

The gray area they are looking to darken is that synthetically derived THC is a schedule 1 controlled substance. Delta 8 is not synthetic, it is the result of Delta 9 degrading.

Because Delta 8 is growing in popularity, it is on the DEA radar. If they determine Delta 8 to be a social concern it will likely go onto the list of controlled substances. If the proposed regulations become law, Delta 8 will become illegal under federal law.

That will hurt the companies producing Delta 8 products from hemp under the 2018 Farm Bill, which makes their product legal. The problem will be in proving whether Delta 8 is the result of a synthesized product or natural THC from degrading Delta 9.

Is THC Dangerous to Consume?

A total of 2,896 hospitalizations or deaths from vaping or e-cigarettes in Washington D.C., Puerto Rico, the U.S. Virgin Islands, and all 50 states have been reported to the CDC as of February 18, 2020. Emergency room visits from vaping continue to decline following their peak in August 2019.

Vaping deaths have led to people being fearful of using THC. Those deaths are the result of black-market products that do not follow regulations.

When you purchase a product from the black-market it often contains cutting agents. These agents are dangerous and can result in death. When you use a legal product, such as Delta 8, you do not have to worry about illegal additives making them dangerous.

When you use Delta 8 your body will develop a tolerance if you use it frequently. That tolerance hampers the effects of your experience. You are able to renew your experience by taking a tolerance break.

A tolerance break allows your body to reset its tolerance triggers. If you would like to learn about taking a tolerance break you can read more here.

Because of the Delta 8 loophole, cannabis entrepreneurs are using it to their advantage and creating a variety of products. Retailers sell Delta 8 in the form of gummies, vape pens, and other products.

The variety of potencies, flavors, and strains are quite often found being marketed as health products. Products containing Delta 8 are some of the fastest-selling items on the market.

Some businesses are using Delta 8 to infuse a smokable hemp flower. This will allow the product appeal to carry over to consumers who smoke marijuana.

Does Delta 8 Show Up on a Drug Test?

There is speculation on whether Delta 8 may show up on a drug test. Urine drug tests search for THC metabolites, and when Delta 8 is the result of degraded THC, it may appear on a drug test. At the same time, the concentration of THC is low, so it may not register.

The problem is standard drug tests do not differentiate between Delta 8 and Delta 9. For that reason, there is a good chance you will fail a drug test if you have Delta 8 in your system.

THC, including Delta 8, can remain in your fat cells for 30 days. If you will be undergoing a drug test you should refrain from using Delta 8 for at least 30 days. If a hair or fingernail drug screen will be given, they can reveal the use of cannabinoids for at least 90 days prior to screening.

Use Delta 8 Legally

Even with Delta 8 being legal federally, there is always a risk of it being mistaken for Delta 9 in drug tests or lab analysis. If you want to give Delta 8 a try we suggest you conform to the following steps to make sure you have no legal repercussions:

• Make sure your state has no laws prohibiting Delta 8 use
• Confirm that your Delta 8 is a hemp plant derivative
• Ask the extraction method for your Delta 8 to confirm it is not an illegal synthetic version
• Check the company’s lab analysis to prove its legitimacy
• Use Delta 8 responsibly as law enforcement may not know of its existence as a legal substance

By taking these precautions you can prevent inadvertently purchasing an illegal product or running into unnecessary legal action.

Join the Delta 8 Craze

Now that you know everything there is to know about Delta 8, its legal standing, safety, and use, it is time to join the Delta 8 Craze. The next time you are looking for a legal way to enjoy the benefits of THC, give Delta 8 a try. For more great information, check out our other blogs.