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Delta 8 THC: Structure, Use, and Legality


DELTA-8-THC

The chemical structure, use, and legality of Delta-8-THC. March 11, 2021 WHAT IS DELTA-8-THC?

Delta 8 is one of hundreds of cannabinoids derived from the cannabis sativa L (hemp) plant. Delta-8-THC is an analogue of Delta-9-THC with a slight difference in chemical bond on the eighth carbon, instead of the ninth. According to the National Cancer Institute, delta-8-THC is:

“An analogue of tetrahydrocannabinol (THC) with antiemetic, anxiolytic, appetite-stimulating, analgesic, and neuroprotective properties. [Delta-8-THC] binds to the cannabinoid G-protein coupled receptor CB1, located in the central nervous system…This agent exhibits a lower psychotropic potency than [delta-9-THC], the primary form of THC found in cannabis.”


DELTA-8 USE

The combination of recreational use and medical benefits of Delta 8 have what catapulted its popularity. It has attributes similar to both THC and CBD based on how it binds to the endocannabinoid receptors. Delta 8 has said to have approximately half the psychoactive potency as Delta 9, and there are reports of users experiencing a milder, smoother “high” that is more functional than a more potent Delta 9 cannabinoid. Other users have also reported that Delta 8 and Delta 9 have somewhat equal benefits, yet Delta 8 lacks the anxiety and paranoia that some relate to Delta 9. Reported benefits of Delta 8: · Slightly psychoactive · Uplifting feeling of relaxation · Body sensations · Clear-headedness Not only is Delta 8 used recreationally but has medical benefits as well. Ten years ago, a study focused on children with different hematological cancers, and alternative treatments for the damaging side effects of chemotherapy. The findings of the study can be summed up as Delta 8 being a better treatment in pediatric oncology. "In summary, the complete success in preventing vomiting due to antineoplastic treatment in children, and the essential lack of side effects, leads us to believe that delta-8-THC at a dose considerably higher than the doses of delta-9-THC usually administered to adults, can serve as a new, inexpensive antiemetic agent in pediatric cancer chemotherapy."

LEGALITY- FEDERAL


Depending on reference, Delta 8 could be legal or not legal. Federally, it is legalized in the 2018 Hemp Farm Bill, which permits the manufacturing and sale of cannabis products derived from hemp, as long as it has less than .3% Delta 9 THC. In August, 2020, The DEA put forth the Implementation of the Agriculture Improvement Act G12HYof 2018 to better clarify and “codify in the Drug Enforcement Administration (DEA) regulations the statutory amendments to the Controlled Substances Act (CSA) made by the Agriculture Improvement Act of 2018 (AIA), regarding the scope of regulatory controls over marijuana, tetrahydrocannabinols, and other marijuana-related constituents” Basically, there were four changes to the DEA’s existing regulations: · It modifies 21 CFR 1308.11(d)(31) by adding language stating that the definition of “Tetrahydrocannabinols” does not include “any material, compound, mixture, or preparation that falls within the definition of hemp set forth in 7 U.S.C. 1639 o.” · It removes from control in schedule V under 21 CFR 1308.15(f) a “drug product in finished dosage formulation that has been approved by the U.S. Food and Drug Administration that contains cannabidiol (2-[1R-3-methyl-6R-(1-methylethenyl)-2-cyclohexen-1-yl]-5-pentyl-1,3-benzenediol) derived from cannabis and no more than 0.1% (w/w) residual tetrahydrocannabinols.” · It also removes the import and export controls described in 21 CFR 1312.30(b) over those same substances. · It modifies 21 CFR 1308.11(d)(58) by stating that the definition of “Marihuana Extract” is limited to extracts “containing greater than 0.3 percent delta-9-tetrahydrocannabinol on a dry weight basis. More specifically on the definition of marijuana, “The AIA modified the foregoing definition by adding that the “term ‘marihuana’ does not include hemp, as defined in section 1639 o of Title 7.” 21 U.S.C. 802(16)(B).” This strengthens and confirms that Delta 9 THC is the factor of legality, and not the other cannabinoids that are outside these parameters, including Delta 8. Technically, this would make Delta 8 THC a legal cannabinoid under the combination of the Hemp Bill, CSA, and AIA (with amendments). Still keep in mind, these products need to abide by FDA guidelines and regulations. PRODUCTION OF DELTA- 8 THC Delta 8 THC is legal if derived from Hemp, though the process most commonly used to produce Delta 8, may not be. The common process used is synthetically altering CBD into Delta-8. According to the executive summary on the Implementation of the Agriculture Improvement Act of 2018, “The AIA does not impact the control status of synthetically derived tetrahydrocannabinols (for Controlled Substances Code Number 7370) because the statutory definition of “hemp” is limited to materials that are derived from the plant Cannabis Sativa L. For synthetically derived tetrahydrocannabinols remain schedule I controlled substances.” The proposed rule would classify all synthetically derived tetrahydrocannabinols as a schedule I controlled substance. There does not seem to be enough clarification on synthetically deriving from CBD, which is extracted from legal hemp, or synthetically produced in a lab, such as Spice and K2 which are known as a “synthetic THC”. According to the New York Times, there are currently lawsuits pending over the interpretation of the D.E.A rule, and some attorneys believe that if Delta 8 is derived or extracted from hemp, then it is considered hemp. Extracting Delta 8 naturally from hemp is expensive and difficult. Delta 8 is less than .1% of the entire chemical makeup of hemp. This is why altering the compounds is the preferred method. Since Delta 8 is an isomer of CBD (which means they have all the same atoms in a different order), rearranging the atoms will result in the Delta 8 compound. This is the way to produce Delta 8 in bulk efficiently and cost effectively. Until the DEA clarifies their rule on synthetically derived compounds, this remains a gray area in legality. Also keep in mind that a positional isomer of schedule I substances can also be controlled. Since Delta 8 is an isomer of Delta 9 (a Schedule I substance) then there is a gray area. The question is, does this rule hold true or is Delta 8 is truly exempt due to the new rule of “hemp” cannabinoids being exempt from scheduling? FUTURE LEGAL STATUS With many companies jumping on the Delta 8 bandwagon, the concern of the Delta 8 status is still very high. A January 2021 quote from a DEA spokesperson to Rolling Stone Magazine leaves questions about future regulations, “agency is currently undergoing the rulemaking process regarding the implementation of the Agriculture Improvement Act of 2018 — which includes the scope of regulatory controls over marijuana, tetrahydrocannabinols, and other marijuana-related constituents — and would therefore not be able to comment on Delta-8 until the process is complete.” There is still fear of increased regulatory scrutiny, and the future of Delta 8 can still change status not in favor of these early Delta 8 entrepreneurs.

LEGALITY- STATE


Federally legalized Delta 8 is one category, though states can regulate further. For the most part, states have piggy backed off the federal law, which makes the Delta 8 legal. Though, some states have unclear positions, while others have very clear laws declaring Delta 8 as an illegal substance. Below is a list categorized by legality on the State’s laws: Legal: Is legal according to state law. Colorado Illinois: Delta 8 THC is legal according to Illinois state law as it defers to federal law, which makes delta 8 THC explicitly legal. Iowa Minnesota New Hampshire Legal: Is likely legal according to state law. California Nevada: Delta 8 THC is legal according to Nevada state law until June 30th, 2020. Legal: Delta 8 THC is legal according to Maryland state law. Like federal law, Maryland specifically legalized all derivatives, cannabinoids, and isomers of hemp. Indiana Maryland Legal: Legal according to State Law. Like Federal Law, the State specifically legalized all derivatives. cannabinoids, and isomers of hemp including all tetrahydrocannabinols other than delta 9 THC.


Alabama Connecticut Florida Georgia Hawaii Kansas Kentucky Louisiana Main Massachusetts Missouri New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania South Carolina South Dakota Tennessee Texas Vermont Virginia Washington West Virginia Wisconsin Wyoming



Likely Legal/Maybe:


Michigan: Delta 8 THC may be legal according to Michigan state law. While the hemp law specifically says all cannabinoids, isomers, and derivatives of hemp are legal, Michigan’s controlled substances policies say that Delta 8, as an isomer and derivative is not legal. Because these laws conflict, there seems to be a grey area surrounding the use of Delta 8 THC in Michigan.

Nebraska: Like federal law, Nebraska specifically states in the LEGISLATIVE BILL 657 – Nebraska Hemp Farming Act that “all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers” from hemp are legal and “shall not be considered a controlled substance”, but the Chapter 28 Uniform Controlled Substances Act Section 28-405 schedules “tetrahydrocannabinols naturally contained in a plant of the genus Cannabis” a Schedule 1 drug. Due to these conflicting laws, we have concluded that Delta-8 THC is likely legal.


Likely NOT Legal:


Rhode Island: Delta 8 THC is likely not legal according to Rhode Island state law. Rhode Island legalized all derivatives, cannabinoids, and isomers of hemp. However, Rhode Island has another law that defines Delta 8 THC under Rhode Island’s definition of “THC” and makes it illegal for human consumption. It does not appear hemp-derived Delta 8 THC would be exempt from this law and would need further clarification from state lawmakers in order to confidently sell Delta 8 THC in Rhode Island.


Not Legal: Delta 8 THC is not legal according to State Laws


Alaska

Arizona

Arkansas

Delaware

Idaho

Mississippi

Montana

Utah

Source



THE SOUTH EAST AND DELTA 8


The South East has a whole, seems to have followed the federal guidelines when it comes to the rule making process, though these states are in process of creating their own regulations pertaining to these matters. The following analysis of the states of Georgia, Tennessee, Alabama, Florida, North Carolina, and South Carolina shows Delta 8 THC as legal. Like Federal law, these states specifically legalized all derivatives, cannabinoids, and isomers of hemp including all tetrahydrocannabinols other than Delta 9 THC.




GEORGIA LAW


House Bill 213 Chapter 23, also known as the “Georgia Hemp Farming Act”, sheds some light on the Laws in Georgia regarding the legality of Hemp and Hemp Products. Key points in this bill are as follows:


1) Georgia requires either a hemp processors license or hemp grower license, or is employed by a licensee, in order to cultivate, handle, or process hemp. Also, a licensee cannot accept hemp for processing from, or sell hemp to, any person that is also not a licensee, unless the hemp is purchased outside the state and that state has a hemp plan that is approved by the Secretary of Agriculture or is in accordance with the regulations promulgated by the United States Department of Agriculture. All relationships between licensees must be in written agreements.


2) Sale of unprocessed hemp flower or leaves at retail is not permitted.


3) The amendments made to the Official Code of Georgia Annotated relating to schedules, offenses, and penalties regarding regulation of controlled substances include the new definition of Marijuana and Tetrahydrocannabinol in Code section 16-13-25, which now excludes “hemp or hemp products defined in Code Section 2-23-3


Georgia Code Title 2. Agriculture Code Section 2-23-3 defines Hemp further “(5) ’Hemp’ means the Cannabis sativa L. plant and any part of such plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with the federally defined THC level for hemp or a lower level.”


It is important to note the definition of “Hemp Products”:


(6) “Hemp products” means all products with the federally defined THC level for hemp derived from, or made by, processing hemp plants or plant parts that are prepared in a form available for legal commercial sale, but not including food products infused with THC unless approved by the United States Food and Drug Administration.


(9) “Process” or “processing” means converting an agricultural commodity into a legally marketable form.


(11) “THC” means tetrahydrocannabinol, tetrahydrocannabinolic acid, or a combination of tetrahydrocannabinol and tetrahydrocannabinolic acid.




TENNESSEE LAW


SENATE BILL NO.357


43-27-101.

(3) “Hemp” means 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 tetrahydrocannabinol (THC) concentration of not more than three-tenths of one percent (0.3%) on a dry weight basis; and


(4) “THC” means delta-9 tetrahydrocannabinol.


SECTION 1.

Tennessee Code Annotated, Section 39-17-402(16)(C), is amended by deleting the subdivision and substituting the following:


(C) “Marijuana” also does not include hemp, as defined in § 43-27-101;


SECTION 3.

Tennessee Code Annotated, Section 39-17-415, is amended by deleting subsection (c) and substituting the following:


(c) This section does not categorize hemp, as defined in $ 43-27-101, as a controlled substance.


SECTION 12.

Tennessee Code Annotated, Title 43, is amended by adding the following as a new chapter:




ALABAMA LAW


ALABAMA CODE 2-8-381


Relating to hemp; to amend Sections 2-8-381, 2-8-383, 20-2-2, Code of Alabama 1975, and 20-2-23 as last amended by Act 2018-552, 2018 Regular Session, Code of Alabama 1975; to require the Department of Agriculture and Industries, in consultation with the Governor and Attorney General, to develop a plan for monitoring and regulating the production of hemp, and submit the plan to the federal Secretary of Agriculture; to exclude from Schedule I controlled substances classified as tetrahydrocannabinols (THCs) derived from hemp; and to revise definitions.


§2-8-381.

(3) HEMP PRODUCTS. Any and all products made from industrial hemp, including, but not limited to, cloth, cordage, fiber, food, fuel, paint, paper, particleboard, plastics, seed, seed meal and seed oil for consumption, and for cultivation if the seeds originate from industrial hemp varieties.

(4) INDUSTRIAL HEMP or HEMP. 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, cultivated or possessed by a licensed grower 9; otherwise in accordance with the state’s USDA-approved regulatory plan, whether growing or not, with a delta 9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis. Industrial hemp shall be considered an agricultural crop or an agricultural commodity, or both, in all respects under state law. The term excludes marijuana as defined in subdivision (l4) of Section 20-2-2.


§20-2-2.

(14) MARIJUANA. All parts of the plant Cannabis sativa L., whether growing or not, the seeds thereof, the resin extracted from any part of the plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. Such term does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination. Marijuana does not include hemp as defined in Section 2-8-381.


§20-2-23.

(b) The controlled substances listed in this section are included in Schedule I:

(3) Any material, compound, mixture or preparation which contains any quantity of the following hallucinogenic substances, their salts, isomers and salts of isomers, unless specifically excepted, whenever the existence of these salts, isomers and salts of isomers is possible within the specific chemical designation:

“q. Tetrahydrocannabinols, except for tetrahydrocannabinols in hemp, as defined in Section 2-8-381.




FLORIDA LAW


SENATE BILL 1020. 581.217 STATE HEMP PROGRAM

(2) LEGISLATIVE FINDINGS.-The Legislature finds that:


(a) Hemp is an agricultural commodity.


(b) Hemp-derived cannabinoids, including, but not limited to, cannabidiol, are not controlled substances or adulterants.


(3) DEFINITIONS.—As used in this section, the term:


(d) “Hemp” means 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 thereof, whether growing or not, that has a total delta 9 tetrahydrocannabinol concentration that does not exceed 0.3 percent on a dry-weight basis.


(e) “Hemp extract” means a substance or compound intended for ingestion that is derived from or contains hemp and that does not contain other controlled substances.


Section 2. Subsection (3) of section 893.02, Florida Statutes, is amended to read:


893.02 Definitions.—The following words and phrases as used in this chapter shall have the following meanings, unless the context otherwise requires:


(3) “Cannabis” means all parts of any plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. The term does not include “marijuana,” as defined in s. 381.986, if manufactured, possessed, sold, purchased, delivered, distributed, or dispensed, in conformance with s. 381.986. The term does not include hemp as defined in s. 581.217 or industrial hemp as defined in s. 1004.4473.



NORTH CAROLINA LAW


SENATE BILL 352 -SECOND EDITION.

AN ACT REVISING THE NORTH CAROLINA CONTROLLED SUBSTANCES ACT.

§ 90-87. Definitions.

(13a) “Hemp” means 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, within a delta-9 THC concentration of three-tenths percent (0.3%) on a dry weight basis.


(13b) “Hemp extract” means an extract from hemp, or a mixture or preparation containing hemp plant material or compounds, within a delta-9 THC concentration of three-tenths percent (0.3%) on a dry weight basis.


(13c) “Hemp product” means any product within a delta-9 THC concentration of three-tenths percent (0.3%) on a dry weight basis derived from, or made by, processing hemp plants or plant parts, that are prepared in a form available for commercial sale, including, but not limited to, cosmetics, personal care products, food intended for animal or human consumption as approved by the United States Food and Drug Administration or the United States Department of Agriculture, cloth, cordage, fiber, fuel, paint, paper, particleboard, plastics, and any product containing one or more hemp-derived cannabinoids, such as cannabidiol. “Hemp product” does not include smokable hemp.


(16) “Marijuana” means all parts of the plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin, but shall not include the mature stalks of such plant, fiber produced from such stalks, oil, or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination. The term “marijuana” also includes smokable hemp. The term does not include hemp, when in the possession, custody, or control of a person who holds a license permitting that person to cultivate or handle hemp; hemp products; or hemp extracts. A licensed cultivator or licensed handler may possess raw hemp plant material for the purpose of (i) selling the raw hemp plant material to a licensed handler or a person who may legally receive the raw hemp plant material in that person’s jurisdiction or (ii) processing the raw hemp plant material into a hemp product or hemp extract.

SECTION 6. G.S. § 90-94. Schedule VI controlled substances.

This schedule includes the controlled substances listed or to be listed by whatever official name, common or usual name, chemical name, or trade name designated. In determining that such substance comes within this schedule, the Commission shall find: no currently accepted medical use in the United States, or a relatively low potential for abuse in terms of risk to public health and potential to produce psychic or physiological dependence liability based upon present medical knowledge, or a need for further and continuing study to develop scientific evidence of its pharmacological effects. The following controlled substances are included in this schedule:

(1) Marijuana. (2) Tetrahydrocannabinols, except for tetrahydrocannabinols in hemp products or hemp extracts. (3) Repealed by Session Laws 2017-115, s. 8, effective December 1, 2017, and applicable to offenses committed on or after that date.



SOUTH CAROLINA LAW


SOUTH CAROLINA HOUSE BILL 3449


Section 46-55-10.


(6) ‘Federally defined THC level for hemp’ means a delta-9 THC concentration of not more than 0.3 percent on a dry weight basis, or the THC concentration for hemp defined in 7 U.S.C. sec 5940, whichever is greater.

7 U.S.C. sec 5940


(2) Industrial hemp The term “industrial hemp” means the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.


(8) ‘Hemp’ or ‘industrial hemp’ means the plant Cannabis sativa L. and any part of that plant, including the non-sterilized seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with the federally defined THC level for hemp. Hemp shall be considered an agricultural commodity.


(9) ‘Hemp products’ means all products with the federally defined THC level for hemp derived from, or made by, processing hemp plants or hemp plant parts, that are prepared in a form available for commercial sale, including, but not limited to, cosmetics, personal care products, food intended for animal or human consumption, cloth, cordage, fiber, fuel, paint, paper, particleboard, plastics, and any product containing one or more hemp-derived cannabinoids, such as cannabidiol. Unprocessed or raw plant material, including non-sterilized hemp seeds, is not considered a hemp product.


(11) ‘Marijuana’ has the same meaning as in Section 44-53-110 and does not include tetrahydrocannabinol in hemp or hemp products as defined herein




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Readers of this report should contact their attorney to obtain advice with respect to any particular legal matter including decisions on what products are, or are not, legal to sell. No reader, user of this report should act or refrain from acting on the basis of information on this report without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. Use of, and access to, this report or any of the links or resources contained within the report do not create an attorney-client relationship between the reader, user, or browser and website authors, contributors, contributing law firms, or committee members and their respective employers.


Laws can and may ultimately be up to the interpretation of a court, judge, and/or jury. Law and/or legal enforcement contrary to our interpretation of the legality of Delta 8 THC may occur. You agree that ECCE, and all associated companies and persons, are not liable for any losses arising from your decision to buy, sell, use, and/or distribute any and all products containing Delta 8 THC.


The views expressed at, or through, this report are those of the individual authors writing in their individual capacities only – not those of ECCE as a whole. All liability with respect to actions taken or not taken based on the contents of this report are hereby expressly disclaimed. The content on this report is provided “as is;” no representations are made that the content is error-free.


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