As anticipated, Delta-8 tetrahydrocannabinol (“Delta-8 THC”) has become the hottest, most flourishing cannabinoid currently found on the U.S. market. In the past few months, the sales of Delta-8 THC products have exploded, representing the fastest growing segment of hemp-derived products.
Yet, despite its growing popularity, the legality of Delta-8 THC, including that of Delta-8 THC products, remains murky. This blog post provides a broad, 30,000-foot view on this issue.
Federal Legal Framework
Although all hemp-derived cannabinoids, including hemp-derived Delta-8 THC, seem to fall squarely within the definition of hemp enacted under the Agriculture Improvement Act of 2018 (the “2018 Farm Bill”), uncertainties remain regarding the federal legality of cannabinoids like Delta-8 THC that are derivatives of other hemp-derived cannabinoids.
Because Delta-8 THC is not expressed in sufficient concentrations in most hemp strains to make its extraction financially viable, most Delta-8 THC on the market is derived from the chemical conversion of hemp-derived cannabidiol (“CBD”). This chemical conversion is at the root of the legal confusion.
Back in August 2020, the Drug Enforcement Administration (the “DEA”) released its Interim Final Rule (the “IFR”) in which the agency stated, in part, that “[a]ll synthetically derived tetrahydrocannabinols remain schedule I controlled