Delta 8 is a rare form of THC found in cannabis plants and industrial hemp. The more commonly referred to and available form of THC is Delta 9. All references to THC in federal and state legislations are generally about Delta 9, not Delta 8 or Delta 10. The 2018 Farm Bill specifically legalizes cannabis and hemp along with their derivatives. These derivatives naturally include THC and CBD. However, the concentration of THC is restricted to 0.3% for a product to be federally legal. States have the liberty to frame their own laws. It should be noted that recreational use of marijuana, cannabis, or hemp, and in effect THC and CBD is still prohibited in some states.

Legality of Delta 8

If we have to go by the federal law, as it stands after the legislation of the 2018 Farm Bill, then Delta 8 is federally legal. There is a caveat though, which is the same as it is for THC or Delta 9. Any product containing more than 0.3% of Delta 8 THC is not legal as per the federal law. However, the federal laws do not specifically mention Delta 8, which is why it has become a grey area.

While Delta 8 is federally legal for now, it is a prohibited substance in many states. The first states to clearly ban Delta 8 were Alaska, Arizona, Arkansas, Colorado, Delaware, Idaho, Iowa, Mississippi, Montana, Pennsylvania, and Utah. A few other states have illegalized Delta 8 since then. These include Kentucky, New York, Rhode Island, Vermont, and Washington. Some states are currently considering options of legislating a ban or some kind of restriction on Delta 8. These states are Alabama, Illinois, Michigan, North Dakota, Oklahoma, and Oregon.

It should be noted that THC continues to be a controlled substance. The proportion of the chemical in any composition determines its legality as per federal laws. The type or nature of a product containing THC or any of its forms leads to its classification, and accordingly the intervention of the Food and Drug Administration. Currently, THC falls under FDA oversight. Hence, Delta 8 is included in that ambit.

Prohibition or Regulation

Most states have legalized medical marijuana. Almost one third of all states have legalized marijuana for recreational purposes. More states may follow suit. The states where marijuana is illegal, whether for medical or recreational purposes, are naturally prohibiting Delta 8. Other states may contemplate some kind of regulation.

The Delta 8 phenomenon is interesting as it became popular in a short time and not many, including the authorities, seem to have a clear idea about its legality. One can expect more states to come up with their own laws, for either prohibition or regulation. The federal law may also be revisited to have some clarity. Given the legality of substances or extracts derived from hemp and cannabis, Delta 8 is unlikely to be illegal as per federal law. However, the FDA may be given a clearer mandate to regulate.