Delta 8 Legality: Where is Delta 8 Illegal?

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Photo by: Simon Schwyter via Unsplash.com

Delta 8 THC has become more well-known and popular throughout 2020 — by now, you’ve likely joined the assemblage of people who are becoming more familiar with it. Its gaining acclaim has sparked more delta-8 regulations and questions from interested parties, with some US states banning it. You’re not alone if its growing popularity has sparked some questions for you and delta-8 legality. You might be wondering where delta 8 is legal? What states have banned or regulated it? And where is delta 8 available? We’ll be exploring the legality of delta 8 with you in this blog post and answer all your pressing questions!

What states is delta 8 legal in?

As of November 2021, delta 8 is legal in twenty-seven states. So, where exactly is delta-8 legal? California, Nevada, Wyoming, New Mexico, South Dakota, Nebraska, Kansas, Minnesota, Missouri, Louisiana, Wisconsin, Indiana, Tennessee, Ohio, Georgia, Florida, West Virginia, Virginia, North Carolina, South Carolina, Washington DC, Maryland, Pennsylvania, New Jersey, Main, New Hampshire, Massachusetts, and Hawaii have not participated in a delta 8 ban.

 

Where is delta-8 illegal?

Since its increase in popularity in the past few years, nineteen states have either banned or restricted the use of delta 8 THC. As of November 2021, the delta 8 illegal states are Alaska, Arkansas, Colorado, Delaware, Kentucky, Idaho, Iowa, Mississippi, Montana, New York, Rhode Island, Utah, Vermont, Washington, Michigan, North Dakota, Connecticut, and Texas.  

States have been restricting or banning delta 8 THC mainly due to the complex and conflicting federal guidelines. This confusion has resulted in it being pushed into a legal grey area — it was unclear if users of delta 8 were consuming an illegal substance or if delta 8 producers were creating a controlled substance. 

Which states are reviewing but not banning delta 8?

As of November 2021, four other states are reviewing the legal status of delta 8 THC: Alabama, Illinois, Oklahoma, and Oregon.

What is the 2018 Farm Bill, and why does it matter?

The federal government signed the Farm Bill in December 2018 under the Trump administration. This bill legalized all hemp-derived cannabinoids and removed hemp-derived tetrahydrocannabinol like THCA, THCV, HHC, and delta 8 THC from the list of controlled substances. Delta 9, also known as the traditional THC most people are familiar with, was the only one to stay on it. So, is delta-8 federally legal? Yes, it is!

The intention behind this law was to preserve the FDA’s authority over hemp products — meaning products must meet requirements and standards set by the FDA. This is true for all FDA-regulated products. There are existing criteria that the FDA has in place over foods, dietary supplements, human and veterinary drugs, and cosmetics that also apply to hemp products. This criterion aims to ensure safety and correctly labeled hemp products that can be depended on for their effectiveness.

When the bill was signed, it removed hemp from the definition of marijuana in the Controlled Substances Act. This removal excluded cannabis and derivatives of cannabis with less than 0.3 percent of the psychoactive compound delta-9-tetrahydrocannabinol, also known as THC. Later on during the year of 2018, the FDA advanced three hemp seed-derived food products through the agency’s GRAS (Generally Recognized as Safe) process. Cannabidiol, also known as CBD, and THC are not naturally found in hemp seeds but are cannabinoid compounds found in other parts of the cannabis plant. Hemp seeds and products created from hemp seeds (hemp seed oil, hemp seed protein powder, etc.) can be used in the US food supply legally. Food made with hemp seeds, however, is subject to the same FDA requirements as any other food. 

However, the current regulatory state is more complex when we look at CBD in hemp products. Under the Federal Food, Drug, and Cosmetic Act (FD&C Act), it is unlawful to introduce food in which an active ingredient in an approved drug product or a substance in which clinical investigations are being taken place or made public. These guidelines exist to preserve access to a safe and advanced pharmaceutical system in the US.

The FDA approved a drug called Epidiolex to treat seizures associated with two rare and pediatric diseases — this approval was huge for these patients and their families. The active ingredient in Epidiolex is CBD. Based on this drug’s approval and the previous clinical investigations of CBD, it cannot be marketed as a dietary supplement. Foods that CBD has been added to cannot be introduced into interstate commerce under the FD&C Act.This act prohibits that an active drug ingredient be added to foods or as a dietary supplement before the drug was approved or subject to substantial clinical investigations — in this case it’s referring to CBD.

Because the agency wasn’t aware that CBD was marketed in foods or dietary supplements before being subject to clinical investigation, they have concluded that this exception does not apply to CBD. It can take three to five years to complete a rulemaking process that complies with the Administrative Procedure Act, even when expedited! A rulemaking completion requires that the agency develops a strong record to support the rulemaking for CBD.

The FDA recognizes that three to five years is a long time to wait, especially where hemp products, CDA, and their growing popularity are concerned. They are currently exploring options to reach a resolution more quickly.  

A Legal Loophole

Delta-8 legality is a top of mind for some states that have not yet legalized marijuana. A legal loophole currently exists for delta 8 as it is legal, federally. One of these states is Wisconsin. The Wisconsin Department of Justice recommended enforcement agencies not take action against any CBD products. There is currently a vast market for delta 8, and it is available even at standard grocery stores in the state.

In 2020, the Drug Enforcement Administration, also known as the DEA, delivered a controversial, temporary final rule to bring the Farm Bill more in line with the Controlled Substances Act. This movement created unique challenges for delta 8 THC. In this final rule, the DEA determined that all “synthetically derived tetrahydrocannabinol remain schedule I controlled substances.” The DEA believes delta 8 is a synthetic substance created by chemical or biochemical synthesis and not sourced straight from hemp plants. 

Why do states want to ban delta 8?

One of the most significant reasons states want to ban delta 8 is due to lack of regulations. Anyone can make delta 8 in their garage and then distribute it, which is scary because individuals could potentially distribute it without lab testing it. It is crucial that delta 8 is lab-tested to ensure quality, safety, and potency for consumers. Because delta 8 is new, the lack of research can be unsettling, like any new drug. 

There are two ways to make delta 8, through fractional distillation or converting CBD or CBD and delta 9 into delta 8. 

Fractional distillation involves the separation of a mixture into its component parts. During this process, chemical compounds are separated by heating them to a temperature at which one or more fractions of the mixtures will vaporize. Delta 8 THC is extracted from the hemp flower of the cannabis plant and undergoes the process of rapid heating, cooling, and vaporizing that helps separate the compound from the plant during this process.

Converting CBD and THC into Delta 8 is a whole-nother process. It is possible to convert both CBD and THC into delta 8 through a chemical reaction, but converting CBD is more straightforward with less solution cleanup in the end. This process is not recommended unless you have a proper lab setting and a strong background in organic chemistry. It involves:

  • Dissolving CBD into the Solvent: The conversion of delta 8 requires a non-popular organic solvent, unlike other cannabinoid extractions.
  • Adding Acid into Solvent Mixture & Stirring: After adding acid of choice into the solvent mixture, the temperature is maintained at a temperature of 100 degrees Celsius while continually stirring for upwards of eighteen hours. 
  • Using Different Solvent Acid Combinations Create Different Results: There are countless combinations possible which are all capable of converting CBD into delta 8. However, each formula delivers different results and could take anywhere from one hour to eighteen hours. These different combinations can also leave a variety of residues that require clean-up.
  • Washing and Drying: Once the chemical reaction is completed, the solution must be washed and neutralized. 
  • Testing is Crucial: Testing is extremely important in this process to ensure the purity, quality, and safety of the product. A full lab panel is critical when creating delta 8 this way.

 

When CBD is converted to delta 8 it requires incorporating solvents and pesticides into the solvent. If this process is executed correctly, there should be zero traces of pesticides and residual solvents. This is why lab testing is so important. Many brands opt to skip lab testing and send their products straight to the market because it’s expensive and can be a hassle. Others may choose to conduct a “lab test” that’s not a full panel. Their priorities may lie in making money rather than providing safe and quality products for consumers. A full panel lab evaluates the product’s potency, purity, and cleanliness (ensuring it contains no pesticides or residual solvents). Some companies will have a lab test that only shows the product’s potency, so it can actually be a strong delta 8 product but contain toxins. 

A good full panel lab test is thorough and effective. Here is an example of a full panel lab test executed on one of our gummy products. “Action Level” showcases how much of the pesticide or solvent you’re permitted to have for a passing score. At Delta Munchies, we are proud to have all of our “Action Levels” shown as “ND” — which stands for Non Defined.

Why are other states choosing not to ban delta 8?

Many states are not choosing to ban delta 8 because of the wide range of potential wellness and therapeutic benefits that accompany it. Delta 8 allows consumers the freedom to enjoy the benefits of THC without the adverse psychoactive effects. The potential benefits of consuming delta 8 may include anxiety management, a tranquil and clear mindset, enhanced appetite, better sleep, less nausea, pain and inflammation reduction, mood boost, and body relaxation

Why are some states choosing to regulate but not ban delta 8?

Given the rapidly changing approach to delta 8, it has been common for some states to have regulations but not to ban it. For example, some states have only banned synthetically made delta 8. Essentially this means that delta 8, which is naturally derived from hemp, also known as fractional distillation, is not synthetic.

In Michigan, delta 8 and delta 8 THC products, as of October 11, 2021, are regulated, but not banned. This decision came after Michigan Governor Gretchen Whitmer signed a package of eight separate bills that each defined “THC” and also modified the definitions of “hemp” and “marijuana.” In this state delta 8 will be regulated by the Michigan Marijuana Regulatory Agency, but there is no goal of banning it. Producers in Michigan must have their products go through official procedures and be tested before being put on the market for consumers.

Like New York and Connecticut, delta 8 THC is more heavily regulated but not banned in other states. In these states, only licensed marijuana retailers are permitted to produce and sell it. Delta 8 is more heavily regulated, and the focus is on ensuring that the THC and delta 8 sold is what it claims it is. By looping delta 8 and delta 9 together, these states bring them up to a high standard of testing and regulation.

Final Thoughts, is delta 8 legal?

Short answer: kind of. Delta 8 THC was legalized because lawmakers were not aware that the compound existed, and it remained obscure until a couple of years ago. States are now beginning to backpedal on the legalization of delta 8 THC. Federally it is legal, but some states are beginning to ban it.

Things are changing fast in the delta-8 regulations world. Although it is not possible to determine the answer to if delta 8 thc will become illegal or not in the future — we are confident that as believers in the product and the positive potential benefits, it will not become illegal. It is a drug that helps many people from your insomniac father to cancer patients, and it is more likely it will become regulated, just like marijuana and CBD.

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