If you follow cannabis-related news, you probably already know that there is controversy surrounding delta-8-tetrahydrocannabinol (THC). This psychoactive cannabinoid is the latest trend in cannabis, but whether or not it is legal at the federal level is legitimately confusing even to some experts.
The controversy has to do with the legality of delta-8 THC. This compound can be extracted from the Cannabis sativa plant, either the marijuana or hemp version, and the 2018 farm bill makes it legal to grow hemp for extractions anywhere in the United States. This means producing delta-8 is sometimes legal even in states where producing classic delta-9 THC is always illegal.
Or at least that’s the theory, which we’ll discuss in detail below. But with a growing demand for THC across the nation and a potentially legal way to extract it in any state, you can see why people are scrambling to get delta-8 THC, even though it is less potent. In fact, to meet this new demand, many hemp-based extractors are increasing their delta-8 production.
But is delta-8 THC actually legal? If so, why should there be controversy, and why does it seem like the feds are coming for delta-8 THC? How is it different from other types of THC?
In this post, we’ll explain what delta-8 THC is, describe its effects, benefits, and potential risks, tell you whether delta-8 THC can get you high, and explain whether it’s legal, at least for now.
What is Delta-8 THC?
Delta-8 THC is a psychoactive cannabis compound that’s very structurally similar to delta-9 THC. Delta-9 THC is the principal compound in the cannabis plant that causes happiness, euphoria, symptom relief, sedation, and otherwise produces a high. Delta-9 THC is the THC that people are usually referring to when they talk about cannabis.
Delta-8 and delta-9 THC are similar, but they have a slightly different chemical structure. Most cannabis strains have large amounts of THC, but the delta-8 form of THC is much less potent than its delta-9 cousin.
Delta-8 vs Delta-9 THC: What’s the Difference?
Just like delta-9 THC, delta-8 THC binds with receptors in the body’s endocannabinoid system ECS. This binding action can cause the intoxicating effects and high feelings THC is known for. It is produced by the chemical structure of the molecules which is similar; chemically, delta-8 and delta-9 THC both have a double bond that is related to intoxicating effects.
However, the placement of that double bond is chemically different from molecule to molecule. Both the delta-8 and delta-9 cannabinoids have a chain of carbon atoms, but they are located on different carbons, changing how they bind to the ECS and which effects they produce.
Both delta-8 and delta-9 are types of THC, and they do produce the kinds of THC effects you’re probably thinking of when you consider that idea. But delta-9 THC occurs in higher concentrations in cannabis, which accounts for its more intense effects. So delta-8 produces a milder high, even though they can both create that euphoric, happy buzz.
In fact, many people call delta-8 THC “diet weed,” “marijuana-lite,” or “diet smoke.” You can also expect other THC side effects such as anxiety, paranoia, and drowsiness to be notably less potent.
Delta-8 vs CBD
Delta-8 THC is far more similar to delta-9 THC than CBD for reasons that are probably obvious. It both produces that high feeling and its chemical structure is nearly identical. And CBD is non-intoxicating, because it doesn’t bind as readily with the endocannabinoid system, although it certainly offers medicinal benefits.
However, these differences can mean that CBD makes a good alternative to delta-8 THC for some consumers. If you want effects that are somewhat like THC but less potent, you’re probably thinking delta-8 is a decent place to start. But so is CBD if you want medical results and no intoxication. And CBD is less controversial in terms of legality.
Is Delta-8 Legal?
That’s the big question, because right now, delta-8 exists in a gray area of the law.
Right now, only a few states specifically address delta-8 THC with law. Most state laws address cannabis, marijuana, CBD, and just THC or delta-9 tetrahydrocannabinol, not delta-8 THC specifically. However, there are at least 18 states where state law appears to specifically restrict or make delta-8 THC illegal, as we will discuss below.
The federal Drug Enforcement Administration (DEA) has also indirectly classified delta-8 THC as a Schedule I controlled substance in a proposed rule. This is not yet final, but if it becomes final, delta-8 THC will join other marijuana products and become federally illegal.
Nearly all delta-8 THC that is now the market is extracted from CBD made from federally legal hemp. This is confusing, because hemp technically contains less than 0.3% THC, although it is still a cannabis plant.
Congress legalized hemp in the United States with the 2018 farm bill, a federal act. The Farm Bill defines hemp in part based on its delta-9 tetrahydrocannabinol concentration being 0.3 percent or less. Technically, this language makes delta-8 THC extracts legal, because they contain no delta-9 THC.
However, in some states, that particular language was not adopted at the state level, making delta-8 THC illegal. The argument for delta-8’s legality only works in states that have laws that exactly mirror the language of the Farm Bill.
This is even more complicated for several other reasons. First, because some delta-8 THC producers only sell to the states they choose based on how they interpret state law.
Second, the DEA released an Interim Final Rule (IFR) in August 2020. This document confirms that cannabis and hemp are different, but also clarifies that all synthetically derived tetrahydrocannabinols, including delta-8 THC, remain Schedule I controlled substances. The IFR was under review through October 2021.
The final status of delta-8 THC may hang in the balance. It seems likely that the new IFR language will be adopted, because the farm bill’s language seems unintentionally vague—at least until all tetrahydrocannabinols are legalized.
Delta-8 THC: State by State and Federally
18 states have now banned or restricted delta-8 THC, and it is under review in 4 others. With increasing demand for delta-8 THC comes a new level of scrutiny.
In October, the Texas Department of State Health Services announced that only THC products containing delta-9 tetrahydrocannabinol (THC) not exceeding 0.3% would be permitted in the state. All other forms of THC, including any level of delta-8 THC, are now considered Schedule I controlled substances in Texas.
This means that Texas chose to follow the model of the Federal Analogue Act. This 1986 law was created to fight the threat of synthetic “designer drugs”. Its text calls for any synthetic drugs intended for human consumption that have similar or greater effects to a natural controlled substance are controlled substances.
However, this month in November 2021, delta-8 THC was again removed from Texas’s list of Schedule I controlled substances after a successful lawsuit. A CBD dispensary sued the Texas Department of State Health Services (DSHS) on a procedural point, and the court granted a temporary injunction. This decision removes delta-8 THC from Texas’s Schedule I list and blocks Texas from enforcing against businesses that produce or sell delta-8 products or arresting their owners until the court decides whether to make the temporary injunction permanent.
Right now, the following states have restricted or banned sales of delta-8 THC: Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Kentucky, Idaho, Iowa, Michigan, Mississippi, Montana, New York, Nevada, North Dakota, Rhode Island, Texas, Utah, Vermont, and Washington.
Alabama, Illinois, and Oklahoma are also considering regulatory clarifications and legislative bans. All of this mirrors past policy on cannabinoids generally; either ban them or regulate them.
Oregon’s HB 3000 does not ban Delta-8 THC, but it does classify both marijuana products and hemp-derived products as adult use items. All products with 0.5 milligrams of delta-8 THC, and any products containing “artificially derived cannabinoids” or “intoxicating cannabinoids” are now Adult Use Cannabis Items in Oregon. This grants authority to the Oregon Liquor Control Commission (OLCC) and sets the standard age restriction of 21+.
Oregon is making other moves toward simply considering delta-8 THC and all intoxicating cannabinoids, whether synthetic or not, the same way and regulating them. In January of 2022, the Oregon Health Authority (OHA) will set new limits for concentration and potency of THC and other intoxicants in cannabis and hemp products for adult sale. Tracking requirements for all cannabinoid products similar to those in the existing adult-use market are also being created.
In September 2021, the federal Food and Drug Administration and Centers for Disease Control and Prevention warned the public of serious health risks from delta-8 THC. These warnings are similar to those from the past decade about standard adult-use THC products, usually related to overconsumption.
However, the adult-use cannabis market is tightly regulated, whereas delta-8 THC products are wholly unregulated. This means there are no requirements for product safety, quality or labelling, and indeed this does present risk to the public.
There is a similar issue happening with CBD products and regulation—but unlike CBD products, delta-8 THC products do produce a high and can potentially get users too stoned. This may prompt faster action from the federal government than we saw with regulations for CBD products.
Federal cannabis legalization could change the entire picture. If cannabis and its natural delta-9 THC was legal everywhere, there would be much less demand for synthetic delta-8 THC. If the feds instead just add delta-8 THC to the Controlled Substances Act, another synthetic cannabis product or cannabinoid will generate the same controversy in a year’s time, probably.
Does Delta-8 Get You High?
Delta-8 will get you high, but it is known as a milder, lighter high compared to the standard delta-9 THC. Delta-8 may be a legal way for those living in some states where cannabis is banned to experience some THC-like effects.
Some cannabis enthusiasts actually prefer less intoxicating cannabis products, such as those which also have CBD or those with delta-8 THC, even if standard THC products are legally available. For many users, THC can produce negative effects, like paranoia and anxiety. A milder, more energizing, smoother delta-8 high could help some people avoid those effects they might be getting from a dab, edibles, or even just a joint.
Effects of Delta-8 THC
Consumers of delta-8 THC products report similar effects to THC, such as happiness, mild euphoria, some pain relief, and feeling uplifted. Delta-8 may also help with other symptoms like insomnia, although it is much less potent than standard cannabis.
Side effects of delta-8 THC are also similar to what you’d expect from delta-9 THC, such as red eyes, dry mouth, trouble with short-term memory, the munchies, anxiety, and possibly paranoia. Remember, too, that although there’s certainly a lack of research out there on cannabis generally, there’s even less on delta-8 THC and its effects on the mind and body.
Where Can You Get Delta-8 THC?
Delta-8 THC is relatively new on the scene, which makes it a challenge to find high-quality products that actually contain delta-8 and nothing you don’t want. Check the websites of makers of delta-8 products for information on manufacturing processes and how they source raw materials for their products. Also look for a QR code or batch number as evidence of quality testing; avoid anything that doesn’t have that transparent information available.
You can also buy delta-8 THC products over the counter at convenience stores, gas stations, online as we mentioned, and of course at head shops and vape shops. They come in many forms, as candies, edibles, gummies, joints, oils, tinctures, vaping pens, or beverages.
Remember, there is no regulation or way to ensure what is in these products. And also remember that CBD products and delta-8 THC products, though both available in a lot of the same places and easy to confuse, are not the same.
How to Dose Delta-8 THC
Especially for people with cannabis experience, delta-8 THC will feel substantially milder and weaker than THC normally does. However, depending on your body chemistry and especially for those new to cannabis, delta-8 THC could affect you strongly.
People who make delta-8 gummies usually dose them at over twice the strength as standard THC gummies, to give you a sense of their relative potency:
- Normal delta-9 THC gummies often come in 10mg doses. You can take half for a 5mg dose or a full gummy for a 10mg dose.
- A standard dose for delta-8 THC gummies is 25mg, for a half dose of 12.5mg and a full dose of 25mg.
The idea is to get about the same effects from one gummy, no matter what kind. However, the research on delta-8 THC really is lacking, so no one knows for sure how it affects the body or how strong the effects really are. How you will feel depends on lots of things, including your body chemistry, the profile of the source plant, set and setting, tolerance, and how much you take.
No matter what kind of THC you’re using, though, starting low and going slow is always good advice. Remember to wait awhile before taking more based on your consumption method. Wait at least two hours before taking more edibles, and at least 20 minutes before vaping delta-8 THC.
Is Delta-8 THC Safe?
There is so far not enough evidence to say for sure how delta-8 THC affects the overall health. What we have at this point is merely anecdotal evidence from what users report.
Delta-8 THC users say this cannabinoid helps them treat:
- substance use
- depression, other mental health issues
- nausea, vomiting, including during cancer treatments
- poor appetite
However, this “gossip” evidence is not the same as research by experts, and the ability to buy something OTC is not the same as knowing it is risk-free.
Delta-8 and delta-9 THC are very similar, so they produce some of the same side effects, like:
- dry mouth
- memory loss
- rapid heart rate (tachycardia)
- red eyes
- slowed reaction times
- trouble with coordination
Some people say they have experienced side effects you would expect from higher amounts of any kind of THC, including:
- low blood pressure (hypotension)
- slow heart rate (bradycardia)
One important risk factor for delta-8 products could come from unlicensed, untested delta-8 THC vape cartridges in particular. Looking back on the EVALI crisis in 2019, delta-8 THC cartridges, which are often sourced outside a cannabis store licensed by states, hold the same risks.
There may be additional risks from delta-8 THC since it’s something synthetically produced, as well. And the journal Chemical and Engineering News published a story about delta-8 products that could also contain delta-9 and delta-10 THC. Very little is understood about delta-10 THC in particular.
If you have any bad reactions after using delta-8 THC products, get help from a healthcare professional immediately. Go to the hospital or call 911 if it’s an emergency. Get immediate help for any child that eats delta-8 THC products such as candies or gummies.
Can I Get Delta-8 in the Mail?
In most states you can receive delta-8 THC products in the mail. However, because of the unusual legal status of delta-8, some producers may not ship to some states. Always check before ordering.
Typically, delta-8 THC producers will ship to all states except these:
- Rhode Island
How is Delta-8 THC Made?
Producers source delta-8 from hemp plants, where it is found in trace amounts. It is also found in cannabis in small amounts, but as hemp is legal to grow, that is usually the source.
Typically, producers extract CBD from hemp, refine the full-spectrum CBD into an isolate, and then synthesize that CBD isolate into delta-8 THC. This means the processing for delta-8 THC is even more costly than the process for making CBD.
Will You Test Positive for THC?
Possibly, depending on the test. Delta-8 is a type of THC. In general, drug tests are detecting traces of delta-9 and its metabolite, but since it is a THC, delta-8 could produce a positive for THC. Of course, how much you use, how often, how long, how your body reacts, and when you stop all affect the test results, too.
Right now, most urine tests for THC that are used commercially don’t differentiate between cannabinoids—including CBD and THC, so forget about a different kind of THC. It’s best to avoid delta-8 THC if you have a drug test that will look for cannabis coming up.
Will the federal government finally do what most people want and legalize cannabis? And if they do, will it kill the demand for synthetic cannabinoids like delta-8 THC?
Until that time, demand will continue. While it does, the legal status of these cannabinoids will be a real question. The DEA’s view may prevail at the federal level, but if it does, we expect other new cannabinoids to raise challenges every year until there’s a better solution.
Emily Kind is a freelance cannabis writer with bylines in several popular publications. A trichome-covered gun for hire; a flower child born a few decades too late. When not covering the latest cannabis industry news, you can find her on beautiful Colorado trails with her Australian Shepherd, Dutch