Delta-8 has a complicated, hazy legality. There’s no question that Delta-9 is highly illegal: Under U.S. federal law, regular THC is a Schedule I substance, which means the government classifies it as dangerous as heroin and LSD. This law, which was passed in 1970, makes research on cannabinoids expensive and difficult — part of why we know so little about Delta-8.
But there was no explicit law banning Delta-8 until this August, when the U.S. Drug Enforcement Administration (DEA) updated their list of controlled substances. A lot of the confusion stems from where Delta-8 is sourced. If it comes from Cannabis sativa, it’s definitely illegal. If it comes from hemp — a form of the same plant, bred with nonintoxicating levels of THC — then it’s legal thanks to the 2018 Farm Bill. Or, so a lot of cannabis companies assumed.
“The entire industry … was assuming it was legal due to it being derived from hemp,” says Ryan Cassell, co-founder and chief scientist of Crystal Creek Organics, a cannabis company based in Pensacola, Florida. “The laws clearly define all hemp-derived cannabinoids and products with a Delta-9-THC level below 0.3 percent as legal.” But shifting, ambiguous laws have some in the industry concerned about a DEA crackdown on hemp farms, according to Marijuana Moment. The convoluted mess of regulations since hemp was legalized has forced the USDA to reopen a public comment period to address some of these changes and the impact they have on the industry.
“We shall see how all of that plays out in the coming months,” Cassell says. “As for now, our company has had to take a step back [from production] and wait for further clarification surrounding the laws and legal status of Delta-8.”
In the meantime, it’s not clear what the future holds for Delta-8. Consumers definitely seem eager to try new, obscure cannabinoids, say both Cassell and Peterson, but whether they can legally purchase them outside of states where recreational cannabis is legal, or whether scientists can easily study them, is still being smoked out.
