How Does Delta 8 THC Affect State-Level Marijuana Legalization?
Historically, cannabis laws were pretty straightforward — if it looks like cannabis, smells like cannabis, or acts like cannabis, it’s illegal.
On August 2, 1937, all forms of marijuana were considered illegal in the United States. This law remained unchallenged until 1996 when California legalized medical marijuana for the first time. This was controversial at the time and created some contradictions in the law. Marijuana was illegal federally but legal on a state level.
Since then, just about every state has adopted new laws allowing the use of marijuana for medical purposes. Even more recently, some states have chosen to legalize marijuana for recreational use too.
Today, the regulations surrounding cannabis is full of loopholes, contradiction, and confusion. Unfortunately, the adoption of delta 8 THC by the mainstream did nothing to make things simpler — and, if anything, have made things even more confusing.
How is Cannabis Regulated in the United States?
There are three divisions of regulatory bodies in the United States — federal, state, and municipal. The states are given their own freedom to create laws on most topics, even if they contradict federal regulations. There’s no better example of this than cannabis.
The way cannabis is regulated on a federal level is often very different — even contradictory — compared to how it’s regulated on a state level.
Here’s the short version:
- Federal regulations —Any products derived from hemp that contain less than 0.3% delta 9 THC is entirely legal. Anything else is a Schedule I drug (the highest category of prohibited substances with the harshest sentences).
- State regulations — Every state maintains its own laws. A state can either be fully legal, medical-only, or entirely prohibited (including CBD).
Federal Cannabis Laws
Until recently, all cannabis plants were included under the same classification. However, federally, any cannabis plant and its derivatives were considered a Schedule I restricted substance. This is the same classification for drugs like cocaine, crack, and crystal meth.
In 2018, an amendment was made to the historic Farm Bill — which primarily controls the laws referring to the agricultural industry. It distinguishes who gets certain types of financial aids or credits, what’s considered legal in marketing, and what crops a farmer has access to grow.
The 2018 amendment brought a massive change to the cannabis world by bumping down a specific variety of cannabis (hemp) from its Schedule I status. This amendment essentially made any form of cannabis legal — as long as it didn’t produce high concentrations of delta 9 THC.
This was the first time the US federal government officially recognized the difference between hemp and marijuana — both of which are the same plant species (Cannabis sativa). The only difference between the two is that one variety makes lots of THC, the other does not.
This is where the current law resides. Essentially anything that’s made from hemp and doesn’t have more than 0.3% delta 9 THC is legal — anything that contains more D9, or is made from marijuana (regardless of THC content), is illegal.
I should note that there are no accepted medical uses for marijuana according to the federal government, so the medical programs on a state level are technically in conflict with this ruling. However, the US government made a statement in 2012 that they would respect the local state laws that contradict this rule. Still, there were a few incidents in the early days where federal agents raided legal dispensaries in legal states like Colorado and Washington. These raids have since stopped.
State Cannabis Laws
Every state has its own regulations governing the sale and possession of cannabis.
Most states were quick to conform to the changes made in the 2018 Farm Bill — legalizing hemp-derived products across the country. This was the driving force behind the CBD boom we saw in late 2018, through to the present day.
Legalizing hemp was a good thing for most states because it created an entirely new market segment for farmers and retail brands to tap into. Not to mention, these products were completely non-psychoactive and offered an alternative to opiate painkillers — which are largely responsible for an epidemic of addiction and abuse currently ravaging all 50 states.
It’s not the hemp laws that differ in each state, but the marijuana laws.
Look at the states on the West Coast — like California, Washington, Oregon, and Colorado — all of these states have amended their laws to allow for both medical and non-medical use of marijuana. As a result, anybody over the age of 21 can walk into a dispensary, buy a few grams of weed, and smoke it on the way home. All of this despite the fact that marijuana is still listed as a Schedule I drug by the federal government.
Other states, especially those in the midwest, take a different angle. Marijuana remains illegal and punishable by hefty fines or jail sentences unless you’ve been approved for specific medical purposes. Even though marijuana isn’t exactly “legal” in these states, it’s still at arms with federal regulation. The definition of a Schedule I drug is that it must have no accepted medical value — so offering marijuana to people as a source of medicine completely contradicts this law.
Some states take a much stricter stance. Take Nebraska, for example; this state views marijuana in a similar context as the federal government. Here, strict punishment is maintained for people using marijuana. Nebraska still doesn’t even have a medical marijuana program.
Delta 8 THC Laws
When you bring delta 8 into the picture, everything gets even more confusing because the language the feds use is too vague to provide any clear indication about whether it’s legal or not. Most states don’t address it at all, either.
Some states ban delta 8 THC while marijuana products remain legal for medical and recreational use — which doesn’t really make any sense. The problem here is semantics.
Let me explain.
The federal government is particular in what types of products are illegal. All the federal bills on this topic specifically list delta 9 THC. There’s no mention of delta 8 THC anywhere — which makes it legal by proxy.
One caveat to this is that the federal government bans what they call “synthetically-derived THC” — which some argue describes delta 8 THC.
But there’s a problem with this.
See, delta 8 THC is a naturally occurring cannabinoid. It’s just found in very low concentrations.
Through innovative techniques, companies can facilitate delta 8 in hemp plants at much higher levels. No step in this process uses or creates any synthetic forms of THC (that is, THC that isn’t found in nature).
This mention is most likely referring to synthetic THC molecules like HU-210, 9-Ketocannabinoid, or AM-2389. Unfortunately, these synthetic cannabinoids have caused many problems in the past, and there have even been deaths associated with their use.
There has not been a single death directly caused by delta 8 or delta 9 THC.
Is Delta 8 THC Helping or Harming State-Level Legalization of Marijuana?
Delta 8 THC has prompted state-level regulators to review and update their cannabis laws — with some moving to make amendments that seek to ban the compound, while others are using it as a chance to relax cannabis laws completely.
Here’s the dilemma — delta 8 THC is mostly derived from hemp, which is a huge benefit to the hemp industry and has yet to show any indication of creating additional problems for society. Delta 8, much like delta 9 THC, is not addictive and isn’t out here killing anybody. States that have moved to legalize cannabis entirely have seen improvements in issues like drug addiction and crime — not an uptick.
Most states are already well on the way to full legalization. So there’s been very little direct action to ban delta 8 because the entire plant is likely to be legalized in a matter of months anyway.
Take Alabama as an example.
A few months ago, House Bill 2 (HB2) was being revisited. Regulators attempted to add delta 8 THC and delta 10 THC to the bill, which would prohibit both substances entirely. However, before the bill was passed, both of them were removed. This clearly indicates that state-level regulators are discussing these cannabinoids and weighing their pros and cons from a legal perspective.
Not long after this, Alabama passed a bill that legalized medical marijuana for the first time — marking a dramatic positive change to a state that’s historically maintained a strong negative view on marijuana.
Many other states have had similar incidences, some deciding to leave delta 8 on the bill (thus banning it, for now), others taking it off.
Despite a few steps backward (such as Vermont recently banning delta 8), most US states are choosing to look the other way for now instead of more lenient (and taxable) moves to legalize cannabis entirely.
While it can be argued that the introduction of delta 8 harmed some state cannabis laws — most US states are either unaffected or improved as regulators move to pass cannabis reform bills that have been clogging the legal pipelines for several years already.