A photo of rolled Delta-8 for an article about its legality in the United States. (Photo by Elsa Olofsson from Unsplash)

Delta-8, Otherwise Known as the Marijuana Loophole

This THC alternative has quietly and swiftly swept across the nation as a legal alternative to traditional THC.

While marijuana remains federally illegal in the U.S. despite more and more states either legalizing or decriminalizing it, there’s been a recent breakthrough that may provide some competition for the controversial plant. Like a thief in the night, Delta-8 has quietly and swiftly been sweeping across the country, functioning as a legal loophole for individuals that wish to enjoy the effects gained from traditional THC consumption.

Delta-8 is a new, semi-legal compound derived from hemp and CBD. Like CBD, Delta-8 is currently sold in gas stations and smoke shops as an alternative to THC. Unlike CBD, however, Delta-8 users experience effects similar to “the real thing.” Smoke shops and even nutrition stores have begun to sell huge amounts of this product in states where marijuana remains illegal. However, the future of Delta-8’s legality remains up in the air as more people begin to learn about its powerful effects.

Delta-8, scientifically referred to as delta-8-tetrahydrocannabinol, is a chemical compound derived from the cannabis plant and is nearly identical to delta-9-tetrahydrocannabinol, the THC compound traditionally consumed with marijuana. Delta-8 is an isomer of delta-9, meaning that both compounds share identical molecular formulas, albeit with a different arrangement.

Chemistry aside, the real question on most people’s minds is how exactly Delta-8’s effects compare to good ol’ traditional marijuana. Surprisingly enough, Delta-8 has been reported to have effects similar to regular THC, with many users reporting positive feelings of euphoria, relaxation and pain relief. Side effects of the compound are mostly similar to THC, with most users noting slight paranoia, eye redness and an increase in appetite. The latter may or may not be an unwanted side effect depending on one’s dietary needs.

While Delta-8’s effects are nearly identical to THC, it has been found to be less potent than its more traditional counterpart, leading some to underestimate the dosage required to achieve the desired effect.

Despite its reduced potency, Delta-8’s effects have been received positively by consumers. In fact, due to its less concentrated effects, many users have reported experiencing little to no anxiety when consuming Delta-8 as opposed to the much stronger consequences that come with Delta-9. Like traditional THC, Delta-8 can be consumed in many different forms including vape cartridges, tinctures and soft gel capsules. Additionally, all the traditional forms of edibles are available as well, such as gummies, cookies, chocolates and even drinks.

Interestingly, despite Delta-8’s incredible impact, it has only recently begun to reach public consciousness. When the 2018 Farm Bill was signed by former President Trump, sales for CBD skyrocketed, with current estimates projecting total sales to reach $1.9 billion by 2022. This naturally led hemp and CBD producers to explore other aspects of the versatile plant. In Steven Spielberg’s classic film “Jurassic Park,” Jeff Goldblum delivers the famous line, “Life finds a way”; similarly, if there’s a loophole to be found, money will find a way through it.

Indeed, money found a way and it wasn’t long before corner stores and smoke shops all over the country started selling Delta-8. While there is still little data regarding how much the industry has made, an anecdotal estimate from Jay Barrios, owner of No Cap Hemp Co, stated that his company alone is projected to make $10 million by 2022.

However, the question remains: If Delta-8 is so similar to THC found in marijuana, just how has it managed to remain legal for sale and consumption in the U.S.? Well, it seems that Delta-8’s legality may in fact currently reside in a sort of legal “gray zone.”

In 2018, the U.S. passed the Agriculture Improvement Act, effectively removing “hemp, defined as cannabis and derivatives of cannabis with extremely low concentrations of the psychoactive compound delta-9-tetrahydrocannabinol (THC) (no more than 0.3 percent THC on a dry weight basis), from the definition of marijuana in the Controlled Substances Act.”

This bill had a significant influence on the CBD market, which seemed to explode out of nowhere shortly after the law passed. Although the bill allows for the research and consumption of all hemp products, it does not exactly place Delta-8 under the federally legal category. While the bill removed hemp and CBD from the DEA’s controlled substance list, the Drug Enforcement Agency filed an Interim Final Rule, which declared that “synthetically derived tetrahydrocannabinols remain schedule 1 controlled substances.”

Naturally, the legal and technical jargon associated with this bill has been the source of much confusion regarding Delta-8’s legal status. Essentially what it means is that because Delta-8 is derived from hemp, which is now legal under the 2018 Farm Bill, it is allowed to be sold and consumed across the country. However, a recent ruling from the DEA has indicated that all synthetic cannabinoids are subject to their jurisdiction.

Again, this does not mean that Delta-8 is necessarily illegal. The Farm Bill allows for hemp and cannabis products to be sold with the requirement that they cannot contain more than .3% Delta-9 THC. This would make the synthesis of Delta-8 from hemp legal, as hemp is legally defined as a cannabis plant containing less than that .3% Delta-9 THC limit. On the other hand, Delta-8 derived from synthetically altered CBD would fall under the Interim Final Rule issued by the DEA. Unfortunately, most of the Delta-8 that is currently being commercially produced is made from the latter.

Thus, the future of Delta-8 is about as clear as the legal wording would suggest, with some lawyers hinting that it’s only a matter of time until the DEA clamps down on the production of the substance. While the need to have a definitive ruling on such an important product might seem obvious, like CBD, Delta-8 remains in legal purgatory, quietly awaiting the judgment of bureaucrats and lobbyists in Washington.

For now, it looks like Delta-8 has been here long enough to provide those who don’t live in decriminalized states with a viable, semi-legal alternative to marijuana. While its future remains uncertain, there’s no doubt that life and pot smokers alike will “find a way.”

Justin Spencer, University of Texas at San Antonio

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Justin Spencer

University of Texas at San Antonio

Justin Spencer is an Air Force veteran who after six years of service attended UTSA. He currently works as a warehouse manager and customer service representative for Pureline Nutrition, a Texas-based supplement company.

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