Delta-8-THC

What is Delta-8-THC?

Delta-8 tetrahydrocannabinol (Delta-8-THC) is a psychoactive synthetic cannabinoid found in the Cannabis sativa plant that shares similar molecular structures to Delta-9 tetrahydrocannabinol. Concentrated amounts of Delta-8-THC are usually made from hemp-derived cannabidiol (CBD). The main difference between Delta-8-THC and Delta-9-THC is the amount present in the dry weight of the Cannabis sativa plant; however, they also have slight differences in their chemical structure. In terms of treatment and usage, Delta-8-THC is used similarly to Delta-9-THC, with effects including pain reduction, sleep support, increased relaxation, and improved appetite.

What is a Cannabinoid?

According to the Alcohol and Drug Foundation, a cannabinoid refers to every chemical substance, regardless of structure or origin, that joins the cannabinoid receptors of the body and brain and that have similar effects to those produced by the Cannabis sativa plant. Similar to opioids, cannabinoids produce their effects by interacting with specific receptors, located within different parts of the central nervous system.

How is Delta-8-THC extracted?

Though it is naturally occurring, in order to acquire a commercially significant amount of Delta-8-THC, it must be extracted in a lab. To make Delta-8-THC, cannabidiolic acid (CBDA) is first extracted from legal hemp. Next, during the decarboxylation (decarb) process, the hemp material is heated, which converts CBDA to CBD and increases the potency of the extracted material. Once the material is decarbed, multiple methods can be used to remove the CBD from the dried plant material.

Extraction Methods

There are several ways to extract cannabinoids from the cannabis plant, including:

• Solvent-based extractions, in which ethanol is used to “wash,” break down, and extract the hemp material;
• Solvent-less extraction, which requires special equipment but does not require any solvent, making this a “cleaner” method; and
• Oil extractions, which is a type of solvent-based extraction that uses an oil base to slowly heat the material and separate THC and CBD material. The heated, decarbed cannabinoids bind with the fat molecules in the oil, resulting in an oil infused with cannabinoids.

Federal Policy and History

In 1937, production of hemp and marijuana was effectively outlawed in the United States with the passing of the Marihuana Tax Act, under which the importation, farming, ownership, and distribution of marijuana and marijuana products was made illegal if the seller was not registered with the federal government and did not pay the required taxes. The Leary v. United States decision in 1969 found the Marihuana Act to be unconstitutional, and Congress responded in 1970 by replacing the Marihuana Act with the Controlled Substances Act (CSA) while continuing specific nationwide drug bans.
In 2014, former-President Obama established the Hemp Pilot Program through the Farm Bill, which allowed state agriculture departments and research institutions to grow and study hemp. In addition, the 2014 Farm Bill defined the legal THC threshold in industrial hemp to be 0.3 percent or less on a dry weight basis.

On December 20, 2018, former-President Trump signed the 2018 Farm Bill into law, removing hemp and all byproducts of cannabis with less than 0.3 percent THC from the definition of marijuana in the CSA, and removed hemp and hemp seeds from the Drug Enforcement Administration’s (DEA) schedule of controlled- substances. To date, the Food and Drug Administration has not evaluated or approved the usage of Delta-8-THC.

State Regulation of Delta-8-THC

Delta-8-THC cannabinoid products are legal in 30 states, and 5 states have established legislation regulating Delta-8-THC cannabinoid products.

Definition of Marijuana or THC

Sixteen states specifically include “the Delta-8 cannabinoid” in their definition of marijuana or THC, which allows products to be further regulated in accordance with state law.

Processing, Possession, and Use

The following states specifically prohibit the processing of industrial hemp to concentrate the Delta-8-THC cannabinoid: California, Colorado, New York, and North Dakota.

Fifteen states have prohibited the possession and use of Delta-8-THC.

Delta-8-THC in Kansas

Attorney General Opinion 2021-4 (PDF) addresses whether Delta-8-THC products are legal to sell in Kansas and whether a statutory limit exists for the amount of Delta-8-THC in products.

The opinion concluded that Delta-8-THC is considered a Schedule I controlled substance in Kansas. Unless it is derived from industrial hemp and is contained in a lawful hemp product containing not more than 0.3 percent total THC, it is unlawful to possess, consume, or sell. The opinion specified that cigarettes, cigars, teas, and substances for use in vaping devices are not lawful hemp products.

The opinion further concluded that Delta-8-THC derived from any source other than industrial hemp is a Schedule I controlled substance and is unlawful to possess or sell in Kansas.

Status of Delta-8-THC	States
Legal	Alabama, Arkansas, Florida, Georgia, Hawaii, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Virginia, West Virginia, Wisconsin, and Wyoming
Legislation regulating Delta8-THC cannabinoid products	Arizona, California, Connecticut, Michigan, and Washington.
Include “Delta-8-cannabinoid” in definition of marijuana or THC	California, Colorado, Connecticut, Florida, Maryland, Michigan, Mississippi, Montana, Nevada, New Hampshire, New York, Oklahoma, Oregon, Nevada, North Dakota, and Vermont
Prohibited possession and use	Alaska, Colorado, Delaware, Idaho, Iowa, Minnesota, Montana, Nevada, New York, North Dakota, Oregon, Rhode Island, South Carolina, Utah, and Vermont