Pharma

The US Government Secretly Illegalized Delta-8 THC

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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.

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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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To Wholesalers: Delta-8 THC might becoming a Controlled Substance, but the government will likely take some time to respond. And that means, if you’re looking to stock your shop with the best delta-8 products, we’re happy to get them to you. Best to take advantage of our great Delta 8 wholesale deals now, and get the delta-8 products you need before the government puts its foot down.

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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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To Wholesalers: Delta-8 THC might becoming a Controlled Substance, but the government will likely take some time to respond. And that means, if you’re looking to stock your shop with the best delta-8 products, we’re happy to get them to you. Best to take advantage of our great Delta 8 wholesale deals now, and get the delta-8 products you need before the government puts its foot down.

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Beth Edmonds