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Controlling Cannabis and the Classification of Delta-8 THC Leave a comment

Controlling Cannabis and the Classification of Delta-8 THC. These products are reportedly synthesized from “hemp,” the non-intoxicating form of marijuana, legalized by the 2018 Farm Bill. Two camps have emerged as to the legal status of Delta-8 THC, and other hemp isomers, that are similar to Delta-9 THC (the concentration of which determines whether a plant is considered hemp or marijuana for purposes of federal law).

A new type of cannabis product has been popping up at many convenience stores and gas stations. In an unfortunate bit of word-of-mouth marketing, these products, technically known as Delta-8 THC, have also become known as “weed light,” “diet weed,” and in some instances “CBD on crack,” due to the “high” they produce. This, in turn, has attracted the attention of state and federal regulators, including the FDA which recently warned about reported adverse effects in connection with these products.

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Many in the industry argue that, just like CBD, Delta-8 THC is a hemp-derived substance and, as a result, is exempted from the definition of marijuana pursuant to the 2018 Farm Bill. Specifically, they argue that, because Delta-9 THC concentration in these products remains below 0.3% (the legal threshold that distinguishes marijuana from hemp), Delta-8 THC products derived from hemp don’t belong on Schedule I of the Controlled Substances Act (CSA). The DEA, which is charged with administering the CSA, maintains that the Delta-8 THC being sold today is no different from Delta-9 THC (or any of its synthetic analogues) and, therefore, belongs on Schedule I.

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These rules were drafted by the Department of Health when it had regulatory authority over hemp regulation. That authority now falls under the Office Cannabis Management. It remains to be seen how that Office deals with Delta-8 THC as part of a comprehensive regulatory scheme for both cannabis and cannabinoid hemp.

While the approaches to regulating Delta-8 THC may vary, there appears to be growing consensus among legislators and regulators that Delta-8 THC is not simply another hemp derivative that can be adequately dealt with through existing hemp regulations. For that reason, in practice, the legal status of Delta-8 THC may be tied to overall legalization of cannabis and Delta-9 THC.

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