R.I.P. Delta-8 THC – law Law Blog™

R.I.P. Delta-8 THC - Canna Law Blog™

Delta-8 THC had a good run. People were making money, customers were happy, and everything seemed legal. As with all good things in life, states and the DEA are doing everything in their power to ensure that the Delta-8 run comes to an end. Let’s talk about why.

For those of you who may not have been paying attention, Delta-8 is one of the many, many cannabinoids found in cannabis plants (marijuana and hemp). Unlike CBD, it gets you high. It’s not usually found in large amounts in cannabis, so it’s usually obtained by converting hemp CBD through chemical processes and cannot legally be obtained from marijuana under federal law.

In theory (or more precisely, according to the verbatim text of the 2018 Federal Farm Act, if you’re interested in small details like “what the real law is”), hemp-derived Delta-8-THC should be considered legal under applicable federal law . But the DEA apparently didn’t get that memo.

Late last year, the DEA issued Interim Final Rules (IFR) stating that all synthetic cannabinoids are List I narcotics and illegal. It doesn’t matter that Delta-8 is most commonly derived from a hemp plant and that the 2018 Farm Bill legalized hemp and its derivatives, because the DEA apparently considers it to be just as dangerous as heroin. We have written quite a bit about why the DEA was simply wrong at the time the IFR was published, and we generally hold that opinion. See below:

Surprisingly, the DEA was not on par with the entire industry. It even added Delta-8 to its Orange Book of Controlled Substances. I am not going to go into too much detail on the status of the Delta-8 federal law, as my colleague Nathalie Bougenies did recently a few months ago.

However, I will find that there are a number of lawsuits that call the IFR into question. One of these cases was recently dismissed due to essentially technical legal issues, and there is another challenge in a federal vocational course that will be held shortly.

The problem with this is that even if the IFR is completely overturned, it really doesn’t matter as states are apparently in a secret competition to ban Delta-8 as soon as possible. On May 18, Hemp Industry Daily published an article stating Michigan was about to ban Delta-8 and ended up stating that it was the twelfth state to do so – including via hemp-friendly states like Colorado and Kentucky. I can already feel the California Department of Health itching when they publish another FAQ website about the Delta-8 ban.

With lawyers bravely trying the DEA on the DC Circuit, one must ask oneself: is it really going to do anything? If states ban Delta-8, it doesn’t matter whether the IFR is scrapped. To the extent that states’ positions are based on the IFR, the only other justification the state can find to ban Delta-8. And the DEA can only ever find one other way to sink its teeth into Delta-8.

How did we get here? Why so much fuss? The answer is probably the fact that Delta-8 is exhilarating. While it’s not as intoxicating as Delta-9 THC, it still gets you high. As I’ve believed for a while, there’s no way states can just sit back and let people sell Delta-8 without restrictions. Delta-8 is often sold online or in retail stores where, for example, there is no state or federal mandate to verify age. This was not something that states would tolerate for long.

While I personally expected states to start imposing regulatory restrictions instead of enacting bans entirely, here we are. It seems like one or two other states have banned Delta-8 every day. Just last year we thought smokable hemp was going to be banned almost across the board, and those bans have been moving at an icy pace compared to the speed of light effort being made to get rid of Delta-8.

At this point, things aren’t looking good for the industry and are likely to get a lot worse before they get better (if they do). It is certainly possible for states to try to fill the vacuum by tightly regulating Delta-8 once the air clears or the DEA loses. But now we just have to be careful which state jumps onto the ban wagon next.