One of the more whiplash-inducing stories from the world of cannabis the past few years just went through another dramatic turn. Delta-8 THC, like the hemp plants from which it is derived, is legal at the federal level, the 9th U.S. Circuit Court of Appeals ruled last week.
Delta-8 THC is an isomer of delta-9 THC, the chemical compound commonly known simply as THC. Delta-8 and delta-9 have the same chemical formula, though slightly different chemical structures. This gives the two similar psychoactive effects. Which is to say delta-8, like delta-9, can get you high, and that's why delta-8 has made it all the way to the 9th Circuit.
"Granting the preliminary injunction, the District Court held that the 2018 Agricultural Improvement Act (the "Farm Act") legalized the company's delta-8 THC products," the 9th Circuit panel said in its 3-0 summary opinion.
The 9th Circuit agreed with the District Court's ruling, affirming the legality of delta-8 THC.
Delta-8 has existed in something of a gray area since the passing of the 2018 Farm Act, which defined and legalized hemp. The definition considered cannabis with less than 0.3 percent delta-9 THC to be hemp, and legal, with any cannabis containing higher concentrations of delta-9 considered to be illegal marijuana. The Farm Act was intended to legalize industrial hemp and nonintoxicating compounds such as CBD, without legalizing cannabis that can produce intoxicating effects. However, the act's definition of hemp specifically mentioned delta-9, and not other chemicals like delta-8.
That created a loophole that allowed an intoxicating chemical like delta-8 to be produced from legally grown hemp. Ambitious entrepreneurs jumped in, seeing an opportunity to bring intoxicating hemp products into states where intoxicating cannabis remains illegal.
In April 2021, the Washington State Liquor and Cannabis Board issued a statement seeking to clarify the issue within the state. The LCB stated that delta-8, and similar intoxicating chemicals that can be derived from hemp, were illegal within the state. Legal developments, like the 9th Circuit ruling, mean the LCB's original statement will likely have to be reconsidered.
For the past two years, delta-8 has bounced back and forth between legality and illegality, depending on who you ask. Last week, the 9th Circuit said it was legal. Now, the LCB is turning to ask the public about delta-8, by hosting a panel discussion on May 31 that will be open to the public. A link to the virtual meeting is available on the LCB website, lcb.wa.gov. ♦
