Both marijuana and hemp belong to the genus plant cannabis sativa and are slightly different “breeds” of the same “species.” While both marijuana and hemp plants contain more than 100 cannabinoids (distinct chemicals found in the cannabis plant), the discerning difference between the two is that marijuana typically has abundant levels of the psychoactive compound delta-9 THC (delta-9-tetrahydrocannabinol), whereas hemp contains high amounts of CBD (cannabidiol). Prior to 2019, both marijuana and hemp were lumped together as “marihuana/marijuana” and classified as a federally prohibited Schedule 1 drug under the Controlled Substances Act (“CSA”).
That changed with the passage of the 2018 Agricultural Improvement Act (the “Farm Bill”), which effectively removed “hemp” from the definition of “marijuana” in the CSA. The Farm Bill defined “hemp” as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 [THC] concentration of not more than 0.3 percent on a dry weight basis.” See 7 U.S.C. § 1639o(1). Therefore, the difference between federally-illegal marijuana and federally-legal hemp is the THC content, with the threshold divider being 0.3% THC potency. Thus, while Schedule 1 prohibits “tetrahydrocannabinols [THC],” it provides an exception for “tetrahydrocannabinols in hemp.” See 21 U.S.C. § 812 sched. I(c)(17). Furthermore, the DEA has recognized that “any material, compound, mixture, or preparation that falls within the definition of hemp set forth in 7 U.S.C. [§] 1639o” is exempt from federal prohibition. See 21 C.F.R. § 1308.11(d)(31)(ii); see also 21 C.F.R. § 1308.11(d)(58) (defining “Marihuana Extract” to include only cannabinoid extracts with greater than 0.3 percent delta-9 THC).
Simply put, any extracts or derivatives derived from hemp that contain no more than 0.3% delta-9 THC are federally permissible. Enter delta-8 THC. Delta-8 THC is one of the cannabinoids naturally occurring in the cannabis plant but is not found in significant amounts; it can nevertheless be manufactured in concentrated amounts from CBD. CBD can be converted to delta-8 in a lab through a relatively simple isomerization process involving reacting CBD with solvent-acid solutions at high heat. Despite the simplicity (or as a result of), not all delta-8 THC is equal, and attention to solvents, acids, cleaning agents, and retention of residual chemicals is paramount in creating a clean, unadulterated product. Lack of regulation, oversight, and standards results in many finished delta-8 products containing potentially harmful chemicals such as acetic acid and residual metals. Moreover, it has been reported that many products sold as delta-8 do not actually contain pure delta-8 THC and are filled with various cannabinoids, such as delta-9 THC and delta-10 THC as well as “unknown” compounds (source).
Delta-8 is said to have a milder psychoactive “high” effect than delta-9, and some people report experiencing a euphoric feeling without the paranoia sometimes associated with delta-9 THC consumption. Others, especially those who consumed delta-8-infused edibles (gummies, brownies, beverages, etc.), reported heightened levels of anxiety, hallucinations, insomnia, confusion, dizziness, and generally unpleasant experiences.
Despite many unknowns and uncertainties about delta-8, it remains federally legal yet unregulated. Several courts confronted with the issue have confirmed that as long as a delta-8 product is derived from hemp and contains less than 0.3% delta-9 THC it is allowed per the Farm Bill. See AK Futures Ltd. Liab. Co. v. Boyd St. Distro, Ltd. Liab. Co., 35 F.4th 682, 695 (9th Cir. 2022) (finding plaintiff’s “delta-8 THC products are lawful under the plain text of the Farm Act and may receive trademark protection”); Ky. Hemp Ass’n v. Quarles, 2022 Ky. Cir. LEXIS 7, *25 (August 3, 2022) (concluding that “Delta-8 tetrahydrocannabinol, as a derivative of Hemp, and any products that contain Delta-8 tetrahydrocannabinol are legally compliant Hemp pursuant to KRS 260.850(5) and 7 U.S.C. 1639o(1) so long as the same contain a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis”).
Now the paradox: delta-9 THC remains federally illegal as many states continue instituting laws to legalize and regulate medicinal and recreational marijuana products; and while delta-8 THC is federally legal, many states are enacting laws and regulations prohibiting and restricting the manufacture, sale, and use of delta-8 products. Some prominent states to ban delta-8 include Arizona, Colorado, Nevada, New York, Oregon, and Washington. Other states like Virginia and Michigan decided to regulate delta-8 like marijuana and require producers obtain a state license before being allowed to produce and sell delta-8 products.
Recently, other hemp-derived isolates and derivatives, such as delta-9 THC, THC-O acetate, and THCV, have been hitting the market. Astute cannabis entrepreneurs have figured out how to exploit the less than 0.3 percent THC loophole to legally produce and sell delta-9 THC-infused products. The Farm Bill authorizes hemp-derived products containing less than 0.3% THC on a dry weight basis, which means for edible and gummy products, up to 0.3% of the product’s dry weight can consist of THC. For example, a bag of gummies that weighs 110 grams can legally contain 100 mg of THC (think 20 gummies containing 5 mg of THC per serving). And thus, the influx of delta-9 THC edible products available for purchase at gas stations, kiosks, and e-commerce websites.
THCV (delta-9 tetrahydrocannabivarin) is still being studied, but early reports suggest it may reduce appetite, suppress nausea and anxiety, and increase alertness. Moreover, THCV has been reported to reduce negative effects associated with THC, such as increased heart rate, paranoia, and verbal recall issues. Compared to THC, THCV imparts less of a psychoactive effect on the user and moderates the intoxicating effect of delta-9 or delta-8 when used together.
THC-0, an ester of THC, is synthesized from delta-8 THC using acetic anhydride, a volatile and flammable chemical, and is said to be three times as potent as THC. Very little is known about how THC-O consumption affects the body across various modalities and whether it poses any long-term risks.
While naturally occurring cannabinoids (biologically existing in the cannabis plant) such as THC and THCV are federally permissible if derived from hemp, the DEA has recently declared synthetic isomers delta-8-THCO (delta-8-THC acetate ester) and delta-9-THC-O (delta-9-THC acetate ester) federally prohibited substances irrespective of whether they come from hemp. The DEA determined that because THC-O does not occur naturally in the cannabis plant and can only be created synthetically, it does not fall under the definition of hemp and is a non-exempt synthetic tetrahydrocannabinol prohibited by Schedule I. 21 U.S.C. § 812, Schedule I(c)(17); 21 CFR 1308.11(d)(31). To say cannabis legality is a grey area would be an understatement. One thing is certain – the industry and consumers would indelibly benefit from federal regulation, standardization, and testing criteria to bring uniformity, consistency, and reliability to an evolving market while reducing risks and hazards inherent in the unregulated unknown.
