Delta-8 Legality

The Agriculture Improvement Act of 2018 (also known as the "2018 Farm Bill") was signed into law on December 20, 2018 and removed Hemp from schedule I of the Controlled Substances Act. "Marihuana", which includes all parts and derivatives of the Cannabis sativa L. plant, is a schedule I controlled substance under the Controlled Substances Act. (21 U.S.C. 802(16)(A);21 U.S.C. 812(c), Schedule 1 (c)(10).) Tetrahydrocannabinols ("THC"), the principal psychoactive constituents of cannabis, are also schedule I controlled substances. (21 U.S.C. 812(c),Schedule I (c)(17).)


However, "marihuana" as used in the Controlled Substances Act now excludes Hemp. (21 U.S.C. 802(16)(B)(i).) Moreover, THC in Hemp is also specifically excluded from the Controlled Substances Act. (21 U.S.C. 812(c), Schedule I (c)(17).) The conclusion that these changes effectively removed Hemp and its derivatives from the Controlled Substances Act has been noted by both the United States Department of Agriculture and the United States Food and Drug Administration. Thus, Delta-8-THC derived from Hemp is not a controlled substance under the Controlled Substances Act because Hemp is not controlled substance and because THC in Hemp is not a controlled substance.

We are of the opinion that Delta-8-THC derived from Hemp is not subject to the Federal Analogue Act. Under this act, a "controlled substance analogue" is a substance:

(i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II;

(ii) which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II; or

(iii) with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II.

(21 U.S.C. 802)

A substance found to be a controlled substance analogue is treated as a controlled substance under federal law. (21 U.S.C. 813) Case law is not settled as to whether only one of the three elements listed above is sufficient to qualify a substance as a "controlled substance analogue", or if section (i) must be satisfied in combination with either section (ii) or (iii), so there is an insufficient legal basis to claim that failing to satisfy just one of these three elements will remove a substance from being considered a "controlled substance analogue". No opinion is made as to whether Delta-8-THC derived from Hemp would satisfy any or all of these elements.

Regardless, the Controlled Substances Act specifically excepts THC in Hemp from controlled substances, so Delta-8-THC derived from Hemp is also excluded and is not a controlled substance.

Updated as of 12/2/2020.

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WARNING: Effects of Delta-8 products may be delayed up to two hours. Delta-8 use while pregnant or breastfeeding may be harmful. Consumption of Delta-8 products may impair your ability to operate machinery. Please use extreme caution when using Delta-8 products.