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Welcome to the world of delta 8! The delta-8 THC legal question is the first thing on the minds of many consumers, and it’s true, this can be a confusing question from state to state.
At this time, around 18 states take on delta-8 specifically with regulations or laws, but most state laws don’t address delta-8 THC specifically and instead focus on marijuana, cannabis, CBD, and just THC or delta-9 tetrahydrocannabinol.
The Drug Enforcement Administration (DEA) has also made moves at the federal level in a proposed rule, indirectly classifying delta-8 THC as a Schedule I controlled substance. If the rule becomes final, delta-8 THC will become federally illegal like other cannabis products.
Congress passed the farm bill in 2018 which legalized hemp in the United States. The 2018 farm bill in part defines hemp based on having a delta-9 tetrahydrocannabinol concentration of 0.3 percent or less. Hemp derivatives are legal—or at least that is the short version.
The argument for legality of delta-8 THC is that since it contains no delta-9 THC at all it’s not illegal—if it’s extracted from hemp. (This is similar to the argument that Cannabis indica is not illegal because only Cannabis sativa is mentioned in the law.)
The law excludes hemp-derived products thanks to the farm bill, and right now, almost all delta-8 THC on the market is hemp-derived. This may feel confusing, because technically although it is still a cannabis plant, a hemp plant contains less than 0.3% THC.
This is even more complicated for several other reasons. First, some states did not adopt that particular language, so delta-8 THC is still illegal. The argument only succeeds where the law mirrors the language of the farm bill exactly.
Second, where delta-8 THC is sold varies from state to state based on the product you’re talking about. This is because some delta-8 THC producers only sell to states they select based on how they interpret their own risk and the law of each state.
Third, in August 2020 the DEA released an Interim Final Rule (IFR). It confirms that hemp and cannabis are different, but reaffirms that delta-8 THC is a synthetically derived tetrahydrocannabinol, and that any such synthetically derived drug remains a Schedule I controlled substance. That rule is not yet final.
At the federal level, marijuana is an illegal controlled substance. In Arkansas this is also true, but cannabis and delta-9 THC are on schedule VI in the state of Arkansas. Enter the Farm Bill which specifically identifies delta-9-tetrahydrocannabinol or delta-9 THC as the prohibited substance in cannabis plants.
In Arkansas, the authority to implement and administer hemp production rules set forth in the Arkansas Hemp Production Act of 2021 is vested in the Arkansas Department of Agriculture and Arkansas State Plant Board.
Delta-8 is a form of THC or tetrahydrocannabinol. Technically, delta-8 THC is an isomer of THC, which is why it shares some of the same psychoactive qualities. It comes in vape cartridges and vape concentrates, tinctures, edibles like delta-8 gummies and drinks, and other forms.
Lawmakers in the state of Arkansas legalized medical cannabis in the state in 2016. As of August 2022, the Arkansas medical marijuana program through the Department of Health has issued almost 90,000 cards to patients with medical conditions.
In neighboring Texas, lawmakers in 2018 passed House Bill 1325, making the federal Farm Bill state law. Soon thereafter when the bill became law in 2019, vape retailers and smoke shops began selling cannabidiol CBD products on this dry weight basis across the state. However, the issue is still being litigated and fought.
In May 2021 in a different case, a California federal court found that delta-8 products are hemp. This means that they are not controlled substances and are legal under federal law, as long as their THC concentration remains under 0.3%, under the Farm Bill as written.
Practically speaking, if you’re pulled over by law enforcement for example and you are in a place where marijuana is illegal but delta-8 isn’t, you should still be careful. For example, most officers aren’t necessarily going to know the difference between one kind of vape cart or another.
24 states have now banned or restricted delta-8 THC products, or are reviewing their legal status. Right now, these states have banned or restricted sales of delta-8 THC:
Arizona, Alaska, Arkansas, Connecticut, Colorado, Delaware, Idaho, Kentucky, Iowa, Mississippi, Michigan, Montana, Nevada, New York, Vermont, North Dakota, Texas, Rhode Island, Utah, and Washington.
These states are considering regulatory clarifications or legislative bans:
Alabama, Illinois, Oregon, and Oklahoma.
Federal legalization of cannabis and natural delta-9 THC could change the entire picture legally. There would be much less demand for synthetic delta-8 THC if cannabis was legal everywhere. If the Controlled Substances Act is merely amended to add delta-8 THC, we will see the same issue again with the next synthetic cannabinoid or cannabis product soon. But in the meantimes, cannabinoids like delta-8 THC, HHC, THC-O, delta-10 THC, and probably many others to come attract the attention of consumers and cannabis brands alike.
In the meantime, if cannabis was legal at the federal level and in every state, and consumer demand for delta-8 products continued, it would be easy to simply monitor and regulate those products like anything else.
So, is it legal, really? For now, yes. As of right now, according to the state and federal government it is legal to buy Delta 8 hemp products under Arkansas law.
Disclaimer: Remember, check your local and state laws and regulations before you place any kind of order, including before you buy delta-8 THC. Although many consumers use cannabis and THC products for health concerns, be aware that these products are not regulated by the US Food and Drug Administration (FDA) and may therefore be less reliable than traditional medications.