Despite US federal court ruling Delta-8-THC remains in legal limbo – what’s next?

Scott Mazza, co-founder and COO of Buffalo’s Vitality CBD, discusses the future of Delta-8-THC, the first psychoactive cannabinoid to achieve nationwide legal approval in the US.

Delta-8-THC is in the crosshairs of regulators in the United States. Despite the cannabinoid receiving federal legal status, more than 20 individual states have sought to restrict Delta-8.

The controversy arises from the fact that Delta-8, unlike cannabidiol (CBD), produces psychoactive effects. Though less intense than Delta-9-THC, the cannabinoid reportedly creates more of an ‘in-your-body’ sensation and physical relaxation. Here, however, lies the problem. Some regulators aren’t happy that Delta-8 is the first psychoactive cannabinoid to achieve nationwide legal approval thanks to a perceived loophole in 2018’s Farm Bill.

It begs the question: what’s next?

The history behind Delta-8-THC

Delta-8 tetrahydrocannabinol, also known as delta-8-THC, is a psychoactive substance found in the cannabis sativa plant, of which marijuana and hemp are two varieties. Delta-8 is one of more than 100 cannabinoids produced naturally by the cannabis plant though it’s not found in significant amounts. Its chemical structure is similar to Delta-9-THC, which is regarded as the main psychoactive element found in marijuana. That said, Delta-8 counts smoother effects than Delta-9, making it appealing to many THC consumers.

It bears repeating that Delta-8-THC is only naturally found in small traces, which is why it’s typically synthesised from legal, hemp-derived CBD. This is possible thanks to the similar molecular structure of cannabinoids and a process called isomerisation. This method sees CBD dissolved in glacial acetic acid to convert it to Delta-9 THC. After three days, half of the material becomes Delta-8-THC. Of course, for quality control, an experienced chemist should oversee the entire process and a third party must test the final products.

The result reportedly produces a clear high without the anxiety often associated with Delta-9. A survey of 500 Delta-8 users largely reported relaxation, pain relief and euphoria, with most participants reporting they could perform their normal daily activities without experiencing the adverse side effects associated with cannabis use, like paranoia, anxiety or the ‘munchies’. Great, right? Well, the answer depends on who you ask.

A cannabinoid in legal limbo

Critics of the cannabinoid claim that it should not be legal in the first place. This is because 2018’s Farm Bill legalised hemp across the country. Since the legislation made no mention of Delta-8, it also became legal to sell. Since then, the industry boomed, especially in prohibitionist states due to the relative lack of specific, restrictive policies.

Despite protests from certain sectors, this ruling continues to stand the test of time. In May, a California federal appeals court ruled that Delta-8 and other cannabinoids derived from hemp are legal even if the substances have psychoactive properties. Further, the Drug Enforcement Administration (DEA) has conceded that Delta-8-THC is generally unregulated because the current statute only bans cannabis products with more than 0.3 percent Delta-9 THC by dry weight.

Federally, there remain no restrictions against hemp-derived Delta-8. However, the story is different at a state level. Today, more than 20 states have sought to restrict Delta-8. Meanwhile, The Food and Drug Administration (FDA) has issued warnings to companies that are marketing products with Delta-8 and making what the agency says are “unsanctioned claims” about their therapeutic potential.

What’s next for Delta-8?

The legal limbo between federal approval and state prohibition is creating a patchwork of standards across the country. Unfortunately, fewer and fewer consumers can access the cannabinoid as a result. It remains to be seen what will happen next in this saga but, interestingly, the judges in May’s case noted that “it is for Congress to fix its mistake” if Delta-8’s legalisation was an unintended consequence of the Farm Bill.

In my view, it should be Congress that clarifies this issue. Currently, we’re seeing the discrepancy between legalising low THC cannabis plants yet criminalising high-THC varieties. In an ideal world, Congress will step in and put an end to prohibition once and for all.

With more research, we can hope that rigorous academic studies confirm the anecdotal benefits of the cannabinoid, giving more reason for consumer availability. For now, it’s encouraging to see that Delta-8 remains legal at a federal level, perhaps opening the door for larger legislative change regarding psychoactive cannabinoids going forward.

This article is by Scott Mazza, co-founder and COO of Buffalo’s Vitality CBD. Hailing from a background in finance, Scott is well-versed in the benefits of hemp and passionate about providing people with a natural alternative to the pharmaceutical industry.