Is Delta-8-THC a Legal High?
When most people think about cannabis compounds they may immediately jump to tetrahydrocannabinol (THC) and cannabidiol (CBD).
CBD products are in vogue right now, making a big splash in the worlds of wellness, cosmetics, and even pet care. THC, on the other hand, is mostly known for being the compound in cannabis that actually gets you high. As such, THC is the main compound mentioned in discussions about cannabis legalization and the THC levels present in a particular plant will be what determines if the material is legal hemp or federally illicit cannabis.
But the cannabis plant is made up of much more than these two cannabinoids – at least 142 more. And one of these lesser-known cannabinoids, Delta-8-THC, is having its moment in the spotlight thanks to a legal loophole that is seeing the mildly psychotropic THC analog being processed and sold by multiple vendors across the United States.
What is Delta-8-THC?
But THC is prohibited, so how can these people be selling THC? Well, it is slightly more complicated than that.
The way we talk about cannabis is confusing. When we speak about THC in cannabis, for the most part, we are actually referring to Δ9-tetrahydrocannabinol, specifically the (–)-trans enantiomer of Δ-9-tetrahydrocannabinol that is recognized by the World Health Organization’s (WHO’s) Expert Committee on Drug Dependence as exhibiting psychoactive properties. So, while Δ8-THC is certainly a tetrahydrocannabinol, it is generally not what is being referenced when we talk about THC.
To add to the confusion, Δ8- and Δ9-THC do not just share similar names by coincidence, these names arise from the fact they also share a remarkably similar chemical structure. Where Δ9-THC features a carbon-carbon double bond between atoms 9 and 10 in its chemical structure, Δ8-THC features this double-bond between atoms 8 and 9. It is a subtle difference in chemistry, but it is a difference.
What are Delta-8-THC's effects?
With such a similar chemical makeup, it is probably not surprising then that Δ8-THC is also capable of eliciting some kind of psychotropic effects. This effect is not quite as potent as the Δ9-THC molecule, but it is sizable enough that Δ8-THC products strong enough to provoke a high in humans can be manufactured fairly easily.
Anecdotal reports claim that using these Δ8-THC products provides a much more mellow high than Δ9-THC, a high that feels more relaxed but that still lets a consumer keep their bearings. Because of this, brands that produce Δ8-THC products say that the high might be more suitable for those who report feelings of anxiety or paranoia when using Δ9-THC products.
Δ8-THC has also been investigated for medicinal use, with studies documenting its effects going back to the early 1970s.
One 1995 open-label trial led by the legendary cannabinoid scientist Dr Raphael Mechoulam found Δ8-THC to be extremely effective in tackling chemotherapy-related vomiting in children. In the research paper, the researchers report that Δ8-THC treatment resulted in only negligible side effects; vomiting was “completely prevented.” While Δ9-THC is also known to have antiemetic effects, the researchers say that Δ8-THC was worthy of investigation itself as it is much more chemically stable than Δ8-THC and was reportedly much cheaper to produce than Δ9-THC or the other chemotherapy-related antiemetic drugs being used at the time.
According to the National Cancer Institute’s drug dictionary, Δ8-THC is now believed to have antiemetic, anxiolytic, appetite-stimulating, analgesic, and neuroprotective properties, as the result of extensive study over the past several decades.
Is Δ8-THC legal?
So Δ8-THC is growing in popularity and it seems like the number of brands now offering Δ8-THC products is greater than ever. But is it actually legal? Well, it is complicated.
The 2018 Farm Bill effectively legalized hemp and cannabinoid products derived from hemp, provided they are produced in a manner that follows all other applicable federal and state regulations. There is then an argument to be made that Δ8-THC derived from legal hemp material would fall under this category of legal hemp-derived cannabinoids.
However, the wording of the US Drug Enforcement Administration’s (DEA’s) new Interim Final Rule on hemp production instructs that “[f]or synthetically derived tetrahydrocannabinols, the concentration of delta-9 THC is not a determining factor in whether the material is a controlled substance. All synthetically derived tetrahydrocannabinols remain schedule I controlled substances.”
Crucially, the DEA has not defined what it means by synthetic production. And given that Δ8-THC can be both extracted directly from hemp material and synthesized from legal CBD, this definition is an important puzzle piece to be missing.
“The thought process is this: hemp is legal under the Farm Bill; CBD is extracted from hemp, is natural, and therefore is legal; trace levels of Δ8-THC have been observed in biomass and therefore is considered a natural product. And since Δ8-THC is naturally occurring, a derivative pathway from CBD for production is legal. Now this is where I start to have concerns,” Dr Chris Hudalla of ProVerde Laboratories told Analytical Cannabis during a keynote talk at Analytical Cannabis Expo East Online 2020.
“One of the problems that we are seeing in the lab is that the conversion of CBD to Δ8-THC is not a natural process, meaning we don’t have direct control of it. Many of the isomers formed during this process are not naturally occurring and so there becomes both a legal question and a consumer safety issue – are these compounds that are resulting from this synthesis legal under the definition of hemp? And are they safe for consumers to be using?”
While the legality of current production practice continues to be debated, many are also now asking how exactly a nuanced legal production process for Δ8-THC could be regulated and enforced in reality.
“While Delta-8-THC is legal if derived from hemp, the process most commonly used to produce Delta-8 – synthetically altering CBD into Delta-8-THC – probably isn’t legal,” Joseph Hoelscher, founding member of the Texas Association of Cannabis Lawyers and longstanding member of the NORML Legal Committee, told Rolling Stone.
“Just as many jurisdictions struggled to build the infrastructure to correctly identify legal hemp, few have the ability to correctly establish, scientifically, how a sample of Delta-8-THC was sourced,” Hoelsccher said. “The DOJ [Department of Justice] is aware, and we can expect that they will figure out how to prosecute these cases.”
When asked by Politico, the DEA declined to comment on the legality of Δ8-THC, at least until it finalizes the agency’s interim final rule on hemp. “We are in the process of reviewing thousands of comments and do not speculate on what could happen as a result,” a spokesperson for the DEA said.
In response to Rolling Stone, a DEA spokesperson also added that “the emergence of different marijuana constituents underscores the importance of research. There is a lot to learn about the impacts of marijuana and its chemical constituents, and the DEA and the DOJ fully support these research efforts which is why a few weeks ago with the support of our interagency partners, we announced unprecedented action to expand opportunities for scientific and medical research on marihuana in the United States.”
In many ways, a psychotropic cannabinoid that gives you a blissful high, has good therapeutic value, and is totally legal would just be too good to be true. And given the amount of scrutiny the compound is currently under from the DEA and DOJ, it just might be. The finalizing of the DEA IFR is likely to be the moment of truth for Δ8-THC, deciding whether this compound with its “cannabis-lite” effects will be the first truly federally legal tetrahydrocannabinol, or if its current time in the spotlight will soon be coming to an end.