The different types of cannabinoids in hemp oil are causing states to scramble.
A quick review. Hemp and Marijuana are both Cannabis. Hemp and all derivatives, extracts, cannabinoids, and isomers of hemp are legal, pursuant to the 2018 Farm Bill. Marijuana remains a Schedule I narcotic, alongside heroin. Marijuana contains Delta-9 THC, the psychoactive agent that results in the ‘high’ associated with consumption. Legal hemp contains less than .03% Delta-9 THC. Hemp does contain CBD, and among many other properties, Delta-8 THC can be derived from CDB oil.
Technically, because Delta-8 THC derives from federally legal hemp, it is federally legal in states with a hemp regulatory program. It is different from Delta-9 THC scientifically, but it can still result in a person getting “high,” though it takes far more Delta-8 to obtain the psychoactive impact than it does Delta-9.
Confused? Delta-9 gets you there faster, and with a smaller dosage than Delta-8.
Because Delta-8 falls under the strict definition of hemp derivatives that are federally legal in states with hemp programs, many people operate under the assumption that it is legal and sell it openly. There are even signs that advertise the “skip the dispensary” attraction of Delta-8 THC along the roadways. The problem for Delta-8 lies in the extra step of deriving it from the CBD that is ubiquitous these days. Delta-8 exists within CDB, but without the refinement – or synthesizing – it is ineffective as a psychoactive isomer. Once synthesized and concentrated, the argument goes, it is beyond the 2018 Farm Bill intent to legalize hemp, and thus, is still a Schedule I narcotic.
Kentucky and Ohio, among others, are weighing in with the illegal voices. Ohio now requires testing and inclusion of Delta-8 levels on product labels in the medical marijuana regulation universe. Ohio considers it a regulated isomer and has the right to prohibit product ingredients that it deems unsafe.
Kentucky’ Department of Agriculture, which governs the Commonwealth’s hemp program, states flatly that Delta-8 THC is a Schedule I controlled substance. The KDA is not law enforcement, however. Whether law enforcement will take up the charge and enforce the KDA’s position remains unclear. Many think that KY and OH are getting it wrong. So far, legal analysis from courts examining the language of the 2018 Farm Bill against the Ohio and Kentucky type position is sparse.
A good explanation of the basic argument, however, is found here.
We are living through something of a turf war, and not an unexpected one. The 2018 Farm Bill passed, but did not answer all questions. The DEA is loath to give up jurisdiction, even when compelled by Congress, and the FDA has not come out of the box with quick, clear, and effective regulation. This leaves the industry in flux. Navigating hemp requires a good knowledge of the potholes and Delta-8 THC is a great example of what are likely to be more skirmishes to come.