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The US Government Secretly Illegalized Delta-8 THC

The US Government Secretly Illegalized Delta-8 THC
Written by Sarah Friedman
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If you’ve been following along, you already know that delta-8 THC has been creating a bit of a legal conundrum in the United States, with lots of ideas about it flying from every corner, but very little to back anything up officially. A recent article published a story that got very little coverage, but which makes things clear (even if the article writers got it wrong). The US federal government added delta-8 THC to its list of Controlled Substances, quietly, but officially, illegalizing it.

Editor’s Note: Delta-8 THC may have been added to the DEA’s Controlled Substances list, however, the federal government has not enforced this change, yet. As a result, Delta-8 is still available for sale, and should be for quite some time. This is great for you if you’re looking to buy anything delta-8 related. The government can take a long time to respond, and this means you still get access to your favorite delta-8 THC products.

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A little backstory

For those following along, you already know. However, if you haven’t been, here’s a little backstory on the whole fiasco, and how the US government is dealing with delta-8 THC. First and foremost, what is the stuff?

Delta-8 is a naturally occurring isomer and analogue of delta-9 THC, the THC generally associated with the cannabis plant. Its an isomer because it has the exact same chemical structure, but with a slightly different configuration of atoms, and its an analogue because it’s structurally and functionally almost identical to delta-9. By naturally occurring, it means delta-8 can be seen in nature. This is because, when delta-9 comes into contact with oxygen, it oxidizes, or loses electrons, to form a more stable compound.

This more stable compound is nearly identical except for one thing, the placement of a double carbon bond. In delta-9 THC it sits on the 9th carbon atom in the chain, in delta-8, on the 8th. The reason delta-8 became a topic of conversation is due to the 2018 US Farm Bill, and a perceived loophole to sell legal THC. The Farm Bill legalized the cultivation of hemp, and production of hemp products, so long as THC levels (specifically delta-9 and its precursor THCA), do not exceed more than .3% in dry weight from the original plant. It was later clarified that this .3% has to be maintained all throughout processing, with any elevated level constituting a break with the law. It applies to the final product as well.

cannabis plants

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While the law technically defines the THC as delta-9 THC, this doesn’t preclude delta-8. And the reason for that, is that delta-8 THC is an analogue of delta-9, and analogues were never covered under the definition of ‘hemp’. Analogues are federally illegal if they are analogues of a federally illegal drug, due to the 1986 Controlled Substances Analogue Act. Delta-9 is illegalized as a Schedule I drug according to the 1970 Controlled Substances Act, and between the two laws, delta-8 is included.

The other thing specifically not covered under the definition of ‘hemp’ is synthetics, and this is the other issue with the delta-8 loophole. Delta-8 does occur naturally, but it oxidizes so slowly from delta-9, that in order to use it for products, it must be processed with human help. This means it’s not simply being extracted, but actually synthesized to a degree, and that effects the definition of what’s going on.

If human processing help constitutes creating a synthetic, then delta-8 can’t be legal. If it being able to occur naturally in nature maintains it as non-synthetic, then this would not apply. The main issue with counting it as a synthetic, is that then it calls into question the safety of processing methods, which without a structure of regulation, leaves consumers at the mercy of producers who want to make a buck. No one is saying that delta-8 itself is dangerous, and in fact, everything (except possible processing techniques) points to it being one of the better versions of cannabis.

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US government response to delta-8 on the state level

Confusion has abounded on this since the US government came out with the Farm Bill, which brought delta-8 to light. First the government put out the DEA Interim Final Rule, followed by the USDA Final Rule, neither of which clarified if human processing help constitutes a synthetic, but both repeating that synthetics remain schedule I illegal substances, regardless of the definition of hemp.

Local governments have been more willing to make bigger statements. So far, 13 states have made laws to ban delta-8 THC: Alaska, Arizona, Arkansas, Colorado, Delaware, Idaho, Iowa, Mississippi, Montana, Rhode Island, Utah, and Vermont. The reason cited by state governments, is that delta-8 must be synthesized. They go on to talk about how this creates danger, exemplified by Colorado’s Health Department, which made this statement, backing up the idea of delta-8 as a synthetic:

“…chemically modifying or converting any naturally occurring cannabinoids from industrial hemp is non-compliant with the statutory definition of ‘industrial hemp product’… Insufficient evidence exists to determine whether or not any toxic or otherwise harmful substances are produced during these reactions and may remain in the regulated industrial hemp products ingested or applied/used by consumers… Therefore, these tetrahydrocannabinol isomers are not allowed in food, dietary supplements or cosmetics.”

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US drug laws
Did the US Government Secretly Illegalized Delta-8 THC?

US federal government response to delta-8

It feels like the US federal government didn’t do anything, or at least, not anything that made a lot of headlines. The DEA and USDA didn’t give a definition for what constitutes synthetic, only reiterating that synthetics are illegal. It also made no official move to ban, or back up a ban, of the compound. Not arresting producers or suppliers, not stopping businesses, and not rounding up and arresting buyers. In that way, the US federal government has done absolutely nothing about it. Which is probably why individual states have.

But the government DID do something, and it wasn’t a small something. A recent article (one of two to mention it at all) reported how the DEA updated its Orange Book on May 10th to include delta-8 THC under Controlled Substances, as a different name for tetrahydrocannabinols. Tetrahydrocannabinols are illegal, as per the laws and regulations mentioned previously.

What is the ‘Orange Book’, and what does this all mean? The Orange Book, officially known as Approved Drug Products with Therapeutic Equivalence Evaluations, is a publication put out by the FDA (not the DEA) which identifies products based on safety and effectiveness, with FDA approval. It also has therapeutic equivalence evaluations for generic drugs, and patent lists for drugs. What it doesn’t have, is a controlled substances list, or any mention of delta-8 THC. The Controlled Substances list is under the DEA, but it has never been identified as the ‘Orange Book’.


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What does it mean?

What the article writer did get right (amongst a large amount of misinformation), is that the name ‘delta-8 THC’ now resides on page 17 of the DEA’s Controlled Substances list as another name for tetrahydrocannabinols, regulated by Criminal Code 7370, ending any discussion about legality. As a note, the criminal code only uses the word ‘tetrahydrocannabinols’, however the Controlled Substances list, which also references relevant criminal codes, has the updated terms that can count for tetrahydrocannabinols. The article writer who wrote about this, seems to be extremely confused about the two separate publications by the two separate government agencies, applying details about the Orange Book, unnecessarily to the Controlled Substances list.

The Orange Book, for example, is not law, but merely advice to drug prescribers. The Controlled Substances list is law. By confusing the two, the author made it sound like the addition of delta-8 THC to the Controlled Substances list, is only advice, when in fact, it is law. Whether this was done out of misunderstanding, or for any other reason is hard to say. What isn’t hard to say, is that the US federal government made delta-8 THC illegal.

I can’t verify the date delta-8 was added – as no official statement was made. It might have happened sometime in April, as referenced by this article a month ago, which looks to be the first mention of the update. (The update can be seen in the May Department of Justice List of Scheduling Actions, Controlled Substances, Regulated Chemicals, where it shows up on pages: 8, 10 and 17.) The article I just mentioned, was written by the same lawyer who was quoted in the first article I sourced on the topic. To be clear, this lawyer also confused the FDA and the DEA, and suggested that the Controlled Substances list isn’t law, and that producers and vendors aren’t committing a federal crime. To me, this is very dangerous reporting. The real question now, why was it done so quietly?

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This took place last month, and until I checked the lists myself, I didn’t know. No announcement was made, no press statement, and no articles written about it, other than the two I sourced, which got all the information wrong. Was it kept quiet because the US government doesn’t plan to do anything about it? Or are there about to be some arrests made? It has now become a prosecutable crime to make delta-8 or sell it, as delta-8 is now a Schedule I controlled substance. The fact it was done so quietly, with such bad reporting, is unfortunate, but it doesn’t change certain things.

Cannabis is going in the direction of complete legality. It’s also incredibly expensive to fight drug wars. And this particular drug issue doesn’t have a death count to spur on the public. It would likely be a losing battle to go after the whole industry, but that doesn’t mean that isolated producers and vendors won’t feel the burn. It remains to be seen how the US government will handle this, but it already started it in a strange way, by adding to the Controlled Substances list, while making absolutely no public announcement about it. Interested, or cynical, parties should check the attached links to verify this for themselves.

Conclusion

Not all news makes it to the news. And not all news stories are written well. For whatever reason the US government illegalized delta-8 THC without saying anything, or that two news stories appeared with very obviously wrong information about it, it looks like the truth of it will take some time to make the rounds. But, at least there is finally an answer to a question that has caused much confusion.

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By adding delta-8 THC to the Controlled Substances list (check page 17), as an alternate name for tetrahydrocannabinols, the US government put delta-8 THC under regulation of criminal code 7370, making delta-8 fall in line with delta-9 THC, being 100% federally illegal, except for that which fits under the definition of hemp. If someone has a question or concern about this information, please check the attached Controlled Substances list, criminal code 7370, and the other legal documentation attached for verification.

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Resources

Colorado Just Banned Delta-8 THC! Who’s Next?
Vermont is the newest state to ban Delta 8 THC The Delta 8 Weekly Newsletter (All you need to know about Delta 8 thc), the Best Delta 8 THC Deals and the Best Delta-10 THC deals
What is Delta 10 THC & Does It Get You High?
Is Delta 8 THC Legal in Your State? Delta-8 THC Delivery Methods: Best Way to Get It in You
The Legality of Delta-10 THC – Where It Stands

Learn More About CBD, CBC, CBN, THCV, CBG & EU GMP-Certified Cannabinoid Isolates and Distillates
Delta-8 THC and the UK: Is It Legal?

Delta 8 Flowers – Milder Than Cannabis, But Very Relaxing and Uplifting
How To Choose Delta-8 THC Flowers?
Your Complete Guide to EU GMP-Certified CBD Isolate and Distillate (European Market)

What Are The Main Medical Benefits of Delta-8 THC?
The Medical Cannabis Weekly Review
The CBD Flowers Weekly Review

DisclaimerHi, I’m a researcher and writer. I’m not a doctor, lawyer, or businessperson. All information in my articles is sourced and referenced, and all opinions stated are mine. I am not giving anyone advise, and though I am more than happy to discuss topics, should someone have a further question or concern, they should seek guidance from a relevant professional.


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About the author

Sarah Friedman

I am a US born writer, travelling the world and doing the digital nomad thing.

2 Comments

  • A couple things here….the DEA refers to its “cheat sheet” list of controlled substances as the Orange Book. It can be accessed here (see the name “Orange Book” in the URL): https://www.deadiversion.usdoj.gov/schedules/orangebook/orangebook.pdf.

    Next thing to point out is that Delta-8 THC has long been listed in this publication, well before the Farm Bill, and certainly long before any recent iteration it has put out. For example, here is one from 2009, where Delta-8 appeared then, same as it does now: https://prod.wp.cdn.aws.wfu.edu/sites/208/2017/07/ehs-controlled-substance-list.pdf#:~:text=Controlled%20Substances%20-%20Alphabetical%20Order%20-%20SUBSTANCE%20DEA,N%20TCP%2C%20tenocyclidine%201-%5B1-%282-Thienyl%29cyclohexyl%5Dpyrrolidine%207473%20I%20N%20TCPy.

    The primary point is, simply placing the term “delta-8” in this guidebook did not mean the DEA suddenly and secretly made D8 illegal, and it also wasn’t recently placed there.

    Whether hemp-derived delta-8 THC is viewed by the DEA as a controlled substance is yet to be known for sure.

    • You are correct, D8 has certainly been there longer than I realized, and that does add a certain weirdness to the whole situation. It is generally not a commonly understood point that delta-8 is on that list, and it is this reasoning that is one of the primary arguments for the confusion over illegality. But what actually isn’t up for debate, is that if it’s on there, it is indeed a controlled substance. And that’s a definitional fact by it being on that list next to code 7370.

      The two things to consider, which are in the article, are that 1) if delta-8 is to be considered the same legally as delta-9 when it comes to hemp-derived products, than only .3% is allowed, and this rules out products. The other issue is that its an analogue of delta-9, which is Schedule I, and that is covered by the Federal Analogue Act, which means it cannot fit under the definition of ‘hemp’. So even if it wasn’t directly on the controlled substances list, it would still be illegal because of this. The definition of hemp doesn’t cover everything, and analogues of a schedule I substance are one of the things it just doesn’t cover.

      Of course, whether the US government ever really does anything about anything is questionable, which means some of these debates may not ever be had in court. If they are (and there are a couple current cases), then we might have more concrete answers.

      Last point, while I get that the term ‘orange book’ can be used for this DEA publication (and it does so as slang), the way it was used by the article writer I cited, was by making a comparison to the FDA’s ‘orange Book’ – which is the only actual ‘orange book’ (as its way easier to call additions to the controlled substances list…additions to the controlled substances list). The comparison being made actually used the definition of the FDA’s actual ‘orange book’, and applied it to the DEA’s addition to the controlled substances list, making for a wildly inaccurate portrayal of what it means to be on the controlled substances list, and the legalities attached.

      I do appreciate the update that delta-8 has been on that list longer, but the only thing that really does, is kill the argument even more that delta-8 has any legality. And while I probably don’t need to say it, these are my interpretations based on current laws, only a court or government explanation, can give a final definition

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