Delta-8 VS Delta-9 THC

Delta-8 is the cannabinoid compound getting a lot of attention these days, but what is it exactly, and how does it compare vs delta-9 THC? Read on to find out more about how these two compounds stack up.

What is delta-9 THC?

We all know delta-9, we all love it. Sometimes referred to as simply THC (which is incorrect), delta-9 is the most famous of the THCs, and the main psychoactive component of the cannabis plant. It’s found in higher amounts in some plants, and lower amounts in other plants. We generally refer to high-THC plants as marijuana, and low-THC plants as hemp.

In actuality, delta-9 barely exists in raw cannabis plants, and is actually a product of decarboxylation of its parent compound THCA. THCA is not psychoactive, but in the presence of light and heat it loses a carboxyl group, and goes from the chemical formula of THCA (C22H30O4), to the chemical formula for delta-9 THC (C₂₁H₃₀O₂), which is psychoactive.

Delta-9 THC is very closely related to other forms of THC, which we refer to as delta-THCs. They all share the same chemical formula. In fact, the only difference between these separate THC compounds, is the placement of a double carbon bond. For delta-9 THC, it takes place on the 9th carbon atom. For delta-10 THC its on the 10th atom in the chain. For delta-7 it’s on the 7th atom, and for delta-8, its on the 8th. All these delta-THCs only differ in the physical presentation of their molecules.

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Delta-9 is a naturally occurring compound, meaning its found in nature. This is not true of all delta-THCs. Delta-10, for example, was made accidentally through the use of a catalyzer, and doesn’t actually appear in this configuration in nature. Other delta THCs like delta-8, do appear in nature, and are therefore also considered naturally occurring compounds.

What is delta-8 THC?

Delta-8 THC, as explained, is another delta-THC, which means its an isomer of delta-9. Isomer means they have the same chemical formula, but with a different configuration of atoms. As also explained above, this means it differs from delta-9 THC only in the placement of a double bond, and is chemically identical otherwise.

Also like delta-9 THC, delta-8 THC is naturally occurring, which means it can be found in nature, although in much smaller quantities than delta-9, regardless of whether dealing with marijuana or hemp. It’s not entirely understood how delta-8 is formed, but the main belief is that it’s a product of the breakdown of delta-9. Delta-9 is mainly known for breaking down into CBN, but there is a small amount that does not, and its thought that this small amount degrades to other compounds, including a tiny amount to delta-8 THC.

Delta-8 and delta-9 THC

When made industrially however, delta-8 is made from either delta-9 or CBD. And its done through synthetic processing meaning rather than being extracted directly, its made from component parts of other compounds, put together with unnatural processing. You can technically do these processes yourself if you have the know-how.

Delta-8 was discovered around the same time as delta-9, in the original research by Roger Adams and then Raphael Mechoulam. It was synthesized for the first time by Mechoulam in the 1960’s. It was even the subject of studies by Mechoulam into nausea and vomiting of cancer patients, but most of that research remained buried for many years, and there has been very little research into the compound since that time.

Delta-8 vs delta-9

The reality of delta-8 vs delta-9 is that they’re practically the same chemically, and have shown to have many of the same medical benefits. Delta-8 has been indicated for use with nausea and vomiting, as well as anxiety, and likely can be used for many of the other purposes as delta-9, though since the actual research doesn’t exist, its hard to say this for sure.

Delta-8 THC
Delta-8 THC

One of the interesting aspects of delta-8 vs delta-9 is that though delta-9 products are generally direct extractions of the plant, most delta-8 products (possibly all) are not actually directly extracted, but synthesized in a lab. This is a direct result of the minuscule amount that shows up naturally, which is not enough for product production. So even though it is naturally occurring, the form that’s used, is always a synthesized version, at least commercially.

This puts it in a strange legal place. As a naturally derived compound, its legal under the definition of hemp, so long as it comes from the hemp plant (not over .3% THC). If its from the marijuana plant, it’s automatically illegal federally, just like delta-9. In theory, it can therefore be extracted from hemp, and sold legally, except for that little confounding factor, that it ends up being synthesized from delta-9 or CBD, which means using processes that no longer fit under the definition of hemp. Even despite this discrepancy, not much has been done to stop the ‘hemp-derived’ delta-8 market, likely because it’s difficult and expensive for the US government to fully go after it, especially in this climate of growing cannabis acceptance.

In terms of whether they actually have different effects, this is hard to say. Original research by Mechoulam turned up evidence that delta-8 is less intense vs delta-9, providing less psychoactive high, at a ratio of 3:2. It’s also pointed to as causing less anxiety, and providing a clear-headed high, with less couch locking, and more energy. Unfortunately, with the lack of follow-up research, these points really aren’t confirmed at all. Plus, ‘less strong’ always comes with the stipulation that if more is taken, the same high can still be reached.

Another differentiating factor between the two compounds? The degradation process that creates delta-8 comes from oxidation of delta-9. And through this process, the loss of electrons makes the resulting delta-8 more stable, and with a longer shelf-life.

Legality delta-8 vs delta-9

The thing is, its become commonplace for delta-8 products and other cannabinoid products to be sold all over the place. I’m not even talking dispensaries, but corner stores, gas stations, any little side store out there. Because of the seeming loophole attached to it as ‘hemp-derived’, and the inability of the government to stamp it out, it ends up in a lot of places where delta-9 isn’t accessible. This doesn’t mean its technically legal, but it does mean it’s widely available.

Even delta-9 products under the term ‘hemp-derived’ have started popping up in the same way. The state of Minnesota became an unwittingly legal state when it legalized hemp-derived THC for edible products. Both the hemp-derived version of delta-8 and delta-9 can be found in illegal states, as they are sold outside standard regulation.

Laws for delta-8 vs delta-9
Laws for delta-8 vs delta-9

Just to clarify, the term ‘hemp-derived’, much like ‘naturally-derived’, doesn’t mean that something is actually extracted directly from hemp, or in the case of ‘naturally-derived’ directly from something natural. It just means it has some of those natural components, along with other unnatural components or processing. How much something specifically fits under the definition of hemp, is determined by the presence of these other unnatural ingredients or processes used. The DEA even recently confirmed that synthetic delta-8 is most certainly illegal because of these definitions. This was backed-up as well by Shopify refusing to allow such products on its platform.

When it comes to delta-8 vs delta-9, some will say delta-8 is legal, whereas delta-9 is not. Some states have even made their own regulation to try to tamp down this market, either legalizing or illegalizing delta-8 THC because of the confusion. What’s the real answer? Well, it’s not for me to say, and it’s hard to say anyway. After all, does it matter if something is illegal if no one will do anything about it anyway? As it seems the delta-8 market relies a lot on not having access to standard weed, one must wonder if a full cannabis legalization, will wipe out the industry anyway.

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What’s the real deal with delta-8 vs delta-9? Honestly, its hard to say in the end because we just don’t know. What we do know is that they’re nearly chemically identical, and seem to provide mainly similar effects and benefits. One is well known, and one is a product of the 2018 US Farm Bill, and a desire to provide a legalized version of the psychoactive part of cannabis.

For anyone looking to use delta-8 products, best to know there’s no regulation in this industry, that testing facilities have shown to be bogus, and that its going to be hard to know what exactly you’re getting, and of what quality. This is just a reality of the industry. On the plus side, delta-8 has shown to be just as safe vs delta-9, so unless you’re dealing with the most unscrupulous of vendors, using the worst of additives, you’ll probably get a decent enough product.

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Minnesota States the Obvious: CBD Was Never Legal

In a recent posting by the Minnesota Cannabis Association, in relation to conversations they say took place between them and a Department of Agriculture representative, it’s once again stated that CBD and cannabinoids are not, and were never, legal. This should not come as a shock to anyone, and it says a lot about news reporting, if it does.

While legally, CBD was never above-board in the US under federal law, there are still plenty of ways of enjoying CBD products, as well as other cannabinoids like delta-8 THC, HHC, and THCV. In fact, with today’s cannabinoid market, these products can be bought outside of dispensaries and are even in stores in illegal states. We’ve got great products available to get you through this holiday season, so check out what we’ve got on offer to make it a truly jolly holiday. Make sure to subscribe to The THC Weekly Newsletter for deals on legal cannabis products, as well as all the latest news and industry stories. Also save big on Delta 8Delta 9 THCDelta-10 THCTHCOTHCVTHCP & HHC products by checking out our “Best-of” lists!

The 2018 US Farm Bill

All of the confusion surrounding CBD and other cannabinoids stems from the 2018 US Farm Bill. To call it ‘confusion’ is a bit short-sited, as these are basic, and easy-to-understand legalities that no legal department would ever have a problem comprehending. As every company has some form of legal representation, including most publications that erroneously repeat lines about legality, I think it’s safe to say that legally, everything I’m about to go over, is plenty well understood by those who need to understand it.

The 2018 US Farm Bill legalized the production of hemp for hemp products. It did this by creating separate definitions for low-THC ‘hemp’, and high-THC ‘marijuana’. As per the law, the definition of ‘hemp’, which is actually ‘industrial hemp’ is as follows:

“The plant Cannabis sativa L. and any part of the plant, whether growing or not, including the plant’s seeds, and all the plant’s derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”

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This definition made it possible to begin hemp cultivation for industrial purposes. What it most certainly did NOT do, was legalize synthetically derived products of any kind, or legalize anything to be taken internally or used as a medicine or health supplement. Whereas hemp cultivation moved under the regulation of the USDA from the FDA, anything involved with foods and medicines/supplements were not moved, retaining their regulation from the FDA.

As such, anything synthetically derived from hemp (including the entirety of the cannabinoid market excluding CBD), and anything meant for food, medicinal, or supplemental purposes (including CBD), are not federally legal according to the FDA as cannabis – including CBD not for industrial purposes, has never been legal in recent times under prohibition laws. This is not unclear to anyone with a legal degree, and is pretty well understandable without one. How many companies selling these products under claims of legality by the Farm Bill don’t retain a lawyer? How many government, and non-governmental agencies don’t consult legal representatives? Exactly!

Despite it not being difficult to understand this, a misunderstanding has been waged in the media in the form of a storyline by which no one with any legal understanding, seems to be able to understand basic laws. This is done to be able to push products, of course. And since the goal isn’t to scare the public away with realities of unknown chemical additives, dangerous processes, and product contamination issues, all of which run rampant in these illegal, unregulated markets, the black market literally created itself black market testing to back up its black market products.

What does this have to do with Minnesota?

There has been a logical back and forth between government and different organizations and businesses. The answer is always the same: these compounds are not legal. Maybe because they’re synthetically made (doesn’t matter if some material is from the hemp plant, if other parts are not), maybe because they’re not legal as a medicine or supplement, or maybe for both reasons.

Back in September of this year, the Alabama Board of Pharmacy was responded to about the legality of delta-8 upon request for information. Of course, the DEA literally only repeated what it had previously said, as its original statements were, indeed, clear enough. A synthetic is not covered under the definition of ‘hemp’. Even this clarification was made the opposite in the press, with headlines claiming it actually proved legalization.

This time around, it was Steve Brown, a member of the Minnesota Cannabis Association board, who apparently ‘stumbled’ onto this legally well-understood information. This came at the mention of a tincture, in reference to a question about processing facilities. According to Brown, “They stated later in the meeting that tinctures are illegal… Then this morning I received information from the Minnesota Board of Pharmacy, sent by a colleague.”

Apparently a representative from the Department of Agriculture explained the following: “The problem here is some of the products you’re mentioning here, Steven, would not be legal food by our definition… The reason for that is all these other cannabinoid products are governed by the Board of Pharmacy.”

The Board of Pharmacy in Minnesota takes its cue from the FDA, which means, the only legal hemp products in the state are hemp seed oil with no THC or CBD, and hemp flower that tests under .3% THC. The thing about a ‘medicine’ is that it must be approved by the FDA in order to be considered one, and the thing about ‘supplements’ is that once an official medication exists, the active ingredient cannot be advertised as a nutritional supplement.

How do we know CBD was never legal?

While this may not make sense, and is greatly in the benefit of big pharma, it still exists as law that the active compound in an approved medicine cannot be marketed as a nutritional supplement in any food or beverage product. Supplements are currently regulated as food by the FDA. And since the drug Epidiolex (pharma CBD) was approved in 2020, it is now illegal to put CBD into supplement products. Epidiolex was approved by the FDA on July 31st 2020. This was done in the middle of a worldwide vote to reschedule cannabis, which resulted in CBD being removed from Schedule IV of the Single Convention on narcotic Substances, making it available for legal medical use globally. Of course, ‘medical’ use varies by country, and what some see as a supplement, others see as a prescription medication.

Imagine that, just as CBD became okay to use as a medicine (and supplement depending on definition), the US approved a pharmaceutical medication that would keep it illegalized for every industry and company outside of big pharma. So, much like France, which was short-sited enough to go to court with the EU over blocking natural CBD products into the country, while openly selling Epidiolex, the US government is saying out of one side of its mouth that CBD is just fine, and out of the other side, that its totally against it.

In terms of other cannabinoids like delta-8 THC, THCV, HHC, CBN, regardless of whether they are naturally occurring or not, if they only occur in small enough amounts to require synthetic processing to make enough for products (all the natural ones do), they’re automatically going to qualify as synthetic. As synthetics were never legalized, and as analogues of Schedule I substances like delta-8 (an analogue of delta-9) are regulated under the Federal Analogue Act, such compounds, much like CBD, were never legal.

While CBD is therefore legal in a legalized state, the synthetically made cannabinoids still aren’t, because they’re synthetics. No state law varies from federal regulation on this, so states setting separate laws for illegalizing delta-8, like Colorado and Vermont, are doing way more than they have to, since by both federal and state law, the compounds aren’t legal.

cannabis laws CBD

Says a lot about trying to stamp out an industry that such states would make separate laws. And all this, when they could simply regulate how certain compounds are made to ensure safety. Delta-8 THC has never shown an issue of worry in its natural form, so working to illegalize it, rather than regulate it, is a strange move, and one that only makes sense in my mind, if its being held back for use in a pharmaceutical market later. Considering how far other countries have gone to suppress natural CBD, while pushing Epidiolex, it’s not that hard to imagine this is true.

Is there a loophole?

Despite confusion created by the press, there is no legal loophole here with either CBD or other cannabinoids. The confusion created centered around the idea that anything that came out of a hemp plant of less than .3% THC was legal for whatever use was desired. As if all those other provisions in the Farm Bill related to the definition of hemp, didn’t exist at all. Realistically, it’s all in the definition itself, and what it does and does not include.

Having said that, there is another type of loophole, which has more to do with dealing with consequences. In this case, it’s about the lack of them. Even if something is illegal, if there isn’t a real threat of being caught or paying consequences, then is it really illegal? The obvious answer is yes, it still is, but the other aspect is that it can also be gotten away with, and that’s incentive to do it.

Maybe the US government is waiting for some kind of market collapse and pharma/biotech buyout of the current industry before going after the black market to support a new legal pharma-owned one. And maybe there is no intention of doing anything for lack of money or popularity for losing drug wars. Either way, at least at this juncture, the US government is making very few moves to enforce the illegality of any of this, which in and of itself has created a loophole for production, sale and use. They might not be legal, but CBD and the rest of the compounds, sure fit into a no-one-will-do-anything-about-it loophole.


To be honest, it makes very little difference whether CBD and other cannabinoids are legal, or if they were never legal at all. The markets are there, and aren’t suffering consequences for being there. For buyers, it’s best to know your products and brands to ensure quality, as unregulated markets spawn a lot of dirty stuff.

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DisclaimerHi, I’m a researcher and writer. I’m not a doctor, lawyer, or businessperson. All information in my articles is sourced and referenced, and all opinions stated are mine. I am not giving anyone advise, and though I am more than happy to discuss topics, should someone have a further question or concern, they should seek guidance from a relevant professional.

The post Minnesota States the Obvious: CBD Was Never Legal appeared first on CBD Testers.

Texas & the Delta-8 Debacle: Will It Stay Legal?

Delta-8 THC sure brings with it a lot of controversy. As different states create legislation that bans the compound, Texas has showcased the growing escalation of the delta-8 battle. Whether Texas keeps delta-8 legal remains to be seen, but for now, the compound has gotten a stay, making Texas one of the first states to fight back against delta-8 prohibition laws.

Texas is in the spotlight with its ongoing delta-8 THC battle. It’s hard to say how it will go, but luckily, there are plenty of options for delta-8 THC and many other cannabis compounds out there. Delta-8 is the half-brother to delta-9, and comes with less psychoactive effect, and more energy than its THC counterpart. Check out our selection of products in the The Delta 8 Weekly Newsletter. And save big on Delta 8Delta 9 THCDelta-10THCOTHCVTHCP & HHC products by checking out our “Best-of” lists!

What did Texas do?

Texas has been going back and forth on delta-8 THC for a little while now. Last year, HB 2593 was passed through the Texas House of Representatives, which would’ve worked to lower penalties for those caught with cannabis concentrates and extracts. However, when it got to the Senate, a provision was added that would illegalize isomers like delta-8 THC through a ‘total THC’ provision. The House did not accept this revision, and opted for a resolution commission instead of signing off on it. The provision was removed by the House, the bill passed the House again, and then the Senate adjourned before a vote. This killed the bill.

On October 15th, 2021, the Texas state health department posted a notice on its website that any delta-8 products were illegal. This was rebutted by Lukas Gilkey, the CEO of CBD and delta-8 company Hometown Hero, who originally filed for a temporary restraining order against the Texas Department of State Health Services on October 21st.

Travis County judge Jan Soifer granted an injunction – not a restraining order – on Monday, November 8th, making delta-8 at least temporarily legal again in Texas. The reason given in court documents for not granting a restraining order, was that “the plaintiff has not met requirements of a temporary restraining order.” To give an idea of how unexpected getting the injunction was, Gilkey said this after the injunction was granted: “Wow, completely insane… We thought we were going to get it, but now that we’re here, it’s completely crazy.”

Texas cannabis laws

So, how did this happen if the law was never passed? Apparently, back in January of 2021, the health department in Texas added delta-8 THC to its Controlled Substances list, very, very quietly. So quietly that the agency only put up the post about the illegality some nine months later! So undercover of night, that in a May legislative session, upon talk of a new bill to ban the compound, it had to be stated by an associate health commissioner to legislators, that it had already been banned. It should therefore come as no surprise that when the state health department held a public comments session in November 2020, no one knew to come.

What is delta-8 THC?

Delta-8 THC is a naturally occurring cannabinoid of the cannabis plant. It’s predecessor is delta-9 THC, which it differs from chemically only in the placement of a double bond. When delta-9 comes into contact with oxygen, it loses elections (oxidizes) to form the more stable compound of delta-8. This means delta-8 has a longer shelf life since its already the oxidized version of delta-9.

While delta-8 and delta-9 are often associated with the same – or similar – medical benefits, delta-8 is associated with a slightly less intense psychoactive high, less anxiety, and more energy without the standard couch-locking effects of delta-9. Though delta-8 has been known about since the original research in the mid-1900’s, and used in testing for different ailments, it was never brought into the mainstream until the 2018 US Farm Bill.

Though delta-8 is naturally occurring, it only oxidizes from delta-9 at an extremely slow rate. This is problematic when it comes to creating products, because not enough can be produced naturally to use for production. For this reason, delta-8 is synthesized when used for products, either being converted from CBD using chemical solvents, or combined with zinc chloride, although the second method is less precise in terms of how much D8 vs other compounds, is produced.

The takeaway from both is that chemical solvents and zinc chloride are not from the cannabis plant, meaning both of these processes create a ‘synthetic’ by definition. Since this process is a synthetic process, the compounds involved no longer fit under the definition of hemp. Since the products now don’t fit under the definition of hemp, they are not regulated by the 2018 US Farm Bill. More on that in the next section.

Is delta-8 THC technically legal?

First and foremost, the whole reason this debate goes on at all is because of the 2018 Farm Bill, and some confusion (whether natural or instigated) that has formed around it. The 2018 US Farm Bill legalized the production of industrial hemp, and hemp-derived compounds. The legislation even came with a new definition of hemp, which sets it apart from other cannabis plants. The definition states that hemp is defined as:

delta-8 THC in Texas

“…the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol [(D 9 -THC)] concentration of not more than 0.3 percent on a dry weight basis.”

This opened the door for hemp-derived products under the confused notion (whether natural or instigated) that simply taking something out of the hemp plant means its legal if the plant contains no more than .3% delta-9 in dry weight at the beginning. This, of course, undermines the fact that the entire processing procedure and final result must also have no more than .3% delta-9. It also ignores other laws. Like the Federal Analogue Act, which states that the analogue of a Schedule I Controlled Substance (like tetrahydrocannabinols – THC), is also a Controlled Substance, and this goes for synthetics of a Schedule I compound.

And while it should have been understood the whole time, the DEA just reiterated in its recent clarification to Donna C. Yeatman, R.Ph., the executive secretary for the Alabama Board of Pharmacy, that anything made synthetically just doesn’t fall under the definition of hemp, thereby making it regulated under the Federal Analogue Act. The statement goes as follows:

“Thus, D8-THC synthetically produced from non-cannabis materials is controlled under the CSA as a “tetrahydrocannabinol.”” Of course, if it’s controlled as a tetrahydrocannabinol, then its automatically illegal. So basically, if delta-8 could be derived from hemp without any synthetization (actually naturally-occurring), it would be perfectly cool. Since it can’t in big enough quantities for production, the use of synthetization becomes necessary, making the delta-8 we use for products, non-Farm Bill compliant.

What happens next for Texas and delta-8 THC?

It’s really hard to say. Whether unwittingly or not, Texas has now become a focal point in the whole delta-8 battle. In the end, of course, so long as its made synthetically, delta-8 is federally illegal. However, delta-8 is also an exemplary candidate for the ‘no-one-will-do-anything-about-it’ loophole, a loophole that exists because of the lack of ability to police a law. And since popular opinion about legalities seems to be steered by the cannabis industry in this case, delta-8 is being written about very mistakenly.

Does it matter? Also hard to say. Synthetic processes can mean the inclusion of bad chemicals, and since delta-8 isn’t regulated, it means no one is watching to see what’s being used. I’ve said this many times in articles, the regulation of the industry is what’s needed in terms of chemicals and processes that can safely be used. Not prohibition laws.

cannabis regulation

On the other hand, it should be remembered that processes to create extractions and concentrates often use butane and other solvents, but are considered perfectly fine, and are used for products sold in dispensaries all the time. These create no different issues than the current complaints about delta-8 processing. The most important thing to understand in all this, is that delta-8 THC itself is fine, and it is merely talk of processing that creates this debate.

Clearly, the government of Texas wants to illegalize delta-8 THC, possibly from federal pressure to do so. The federal government can’t go after producers or vendors in an organized way since it would cost too much money. After spending over $1 trillion on losing drug wars, and with popular opinion so greatly changing on cannabis, the US federal government no longer has a way to go after it, and no money to do so, or ability to get the masses on board again with rampant smear campaigns. It can only force its will on state governments.


Will Texas keep delta-8 THC legal? Or, will Texas try another sneaky move? Quite possibly the second. Considering that the state health department held a public comments session, which no one attended because no one knew about it, I’d say the state government will go pretty far to get this through. Luckily, there is that other hand, and at this point, there might just be enough attention on the subject, and the shady way Texas attempted to illegalize it, that things could finally start going in the other direction for delta-8.

Hello to all! Welcome to, the #1 cannabis and psychedelics-related news publication on the web, presenting the most thought-provoking and relevant stories in the industry today. Check us out daily to stay up-to-date on the quickly-moving universe of legal drugs and industrial hemp, and jump over to The Delta 8 Weekly Newsletter, so you never have to guess what’s going on.

DisclaimerHi, I’m a researcher and writer. I’m not a doctor, lawyer, or businessperson. All information in my articles is sourced and referenced, and all opinions stated are mine. I am not giving anyone advise, and though I am more than happy to discuss topics, should someone have a further question or concern, they should seek guidance from a relevant professional.

The post Texas & the Delta-8 Debacle: Will It Stay Legal? appeared first on CBD Testers.

DOJ Confirms That Synthetic Delta-8 THC is ILLEGAL

In a strong showing of ‘be careful of the headline that you read’, a recent story has broken out that the DOJ confirmed the legality of delta-8 THC. This is fancy marketing writing, when in fact, the DOJ just clarified that synthetic delta-8 THC is most certainly illegal.

Though a letter from the DEA has confirmed that synthetic delta-8 THC is illegal, this doesn’t do much to stop the burgeoning products market, which offers tons of delta-8 THC options. Delta-8 certainly fits into a ‘no-one-will-do-anything-about-it’ loophole, which means regardless of the DEA, this market should stay intact.
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What happened?

What happened is that a slew of headlines hit the internet in the last couple months, with a claim that the Department of Justice, through the DEA, made a clarification that hemp-derived delta-8 THC is legal. This in response to a question on its legality. While it does appear that a letter was written, and while it does back up this claim, it most certainly does nothing to back up the idea that the delta-8 THC we use, is legal. And in fact, quite clearly states the opposite, that synthetic delta-8 THC is illegal. Of course, understanding the letter, means actually understanding the situation.

The letter was a response from The Department of Justice, via the DEA, to Donna C. Yeatman, R.Ph., who is the executive secretary of the Alabama Board of Pharmacy. The original letter by Yeatman was dated August 19th, 2021, with the response to it dated September 15th, 2021. Though I cannot see the original letter sent to the DEA by Yeatman, the response states that it was made in reference to a question on the “control status of delta-8-tetrahydrocannabinol (D8-THC) under the Controlled Substances Act (CSA).”

The response letter starts by identifying what delta-8 is: “D8-THC is a tetrahydrocannabinol substance contained in the plant Cannabis sativa L. and also can be produced synthetically from non-cannabis materials.” After explaining a bit about THCs, and how they’re Schedule I, it goes on to make this statement: “Thus, D8-THC synthetically produced from non-cannabis materials is controlled under the CSA as a “tetrahydrocannabinol.””


What the headlines are referring to, is the already understood statement that comes next: “The CSA, however, excludes from control “tetrahydrocannabinols in hemp (as defined under section 1639o of Title 7).” Hemp, in turn, is defined as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol [(D 9 -THC)] concentration of not more than 0.3 percent on a dry weight basis.” 7 U.S.C. 1639o(1).”

And then it makes this, already understood statement: “Accordingly, cannabinoids extracted from the cannabis plant that have a D 9 -THC concentration of not more than 0.3 percent on a dry weight basis meet the definition of “hemp” and thus are not controlled under the CSA. Conversely, naturally derived cannabinoids having a D 9 -THC concentration more than 0.3 percent on a dry weight basis is controlled in schedule I under the CSA as tetrahydrocannabinols.1”.

What does this mean about synthetic delta-8 THC being illegal?

Truth is, we’ve seen these statements plenty of times already. They’re the basic definitions and statements that came out with the Farm Bill in 2018, and the follow-up commentary by the DEA and the FDA in their interim and final rules. Nothing new is being stated here. In fact, the DEA did what it does best, reiterated already explained information, without making any new statements. Which makes it even funnier to me that this is being written about the way it is.

You see, we already know that hemp-derived compounds are legal so long as they are naturally occurring, and not in violation of the stipulation requiring no more than .3% delta-9 THC on a dry weight basis. We know that because it’s literally a part of the definition of hemp. But we know a few more things, regardless of how much they might be uncomfortable to the industry. Here are a few things that we already know:

  • Delta-8 is a minimally occurring natural and oxidized version of delta-9 THC, which can’t be extracted in high enough amounts naturally (and certainly not from hemp which has a low delta-9 concentration) for product production.
  • This means, in order to produce products for use, delta-8 THC must be synthetically made, rather than being extracted from the delta-9 that comes from hemp plants.
  • The processes for producing naturally occurring delta-8 THC and synthetic delta-8 THC are very different, and are regulated differently. Naturally occurring is legal, and synthetically made is illegal. Even if the same compound is produced.
  • Since we only use synthetic delta-8 THC in products, the delta-8 THC being advertised and sold is definitionally, not legal. It can’t be because it’s not coming directly from the plant.
  • IF delta-8 could be appropriately sourced directly from the hemp plant without synthesis, it WOULD be legal. If all products were made in this way, we wouldn’t be having this conversation at all.

Why did this story come out?

The 2018 US Farm Bill legalized the production of industrial hemp, and hemp-derived compounds. It also set in motion a huge debate over compounds like delta-8 THC, which can technically be derived from a hemp plant, making many in the industry erroneously believe that simply being able to be derived from a plant, is comparable to a synthetically made version of the same compound.

These two things are, in fact, regulated completely differently, with natural hemp-derived compounds being legal, and synthetics falling under the Federal Analogue Act of 1986, which states that an analogue of a Schedule I substance (that would be tetrahydrocannabinols), is also a controlled substance. As in, once its synthetic, definitions of hemp no longer apply.

There has been much talk about a legal loophole that doesn’t actually exist, as a way to spur on what is actually an illegal market. Far as I can tell, this article factors into this debate, as a weak attempt to try to sway popular opinion, by making a slight misstatement that focuses on the general misunderstanding of plant-derived vs synthetic.

What’s the takeaway?

Perhaps there are two takeaways here: the first is that, if the DEA and Department of Justice have not seen fit to make any further official statement, that they’re not likely to be saying anything new to someone asking for a clarification. And that’s exactly the case here. Nothing new was said. Nothing changed. In order for this statement to carry any weight, it would have had to explain something further to the definitions we already know.

The second takeaway is that headlines can be incredibly misleading, particularly when there is an opinion battle going on. I’m all for the legalization of weed and its compounds. But I don’t like when information is skewed for the purposes of creating confusion, and especially when that confusion is being created as part of a marketing war. These headlines are meant to make buyers think that what they’re doing is safe and permitted, and technically, its not.

delta-8 loophole

The more confounding aspect to this, is that legal loophole or not, synthetic delta-8 THC (the only kind we actually use) most certainly falls into a loophole despite being illegal. It’s just a different kind of loophole. It’s a ‘no-one-will-do-anything-about-it’ loophole. It’s a loophole that exists on the basis that regardless of legal status, nothing is likely to be done. The federal government has wasted so much money fighting a plant that its about to legalize, that going after it again is a horrible press nightmare.

Besides this, the internet world is massive, and impossible to regulate, which means the federal government would be banging its head against the wall, just to have a horrible press nightmare. It really doesn’t matter how the US government defines the legality of delta-8 THC, its not looking to actively stop its production and sale on a large basis. Because it realistically can’t. And that understanding makes this headline war, that much more insane.

Synthetic Delta-8 THC – Conclusion

If there’s still some kind of confusion over this, here’s a simplified version to help with clarity. If delta-8 THC comes directly from the plant, its legal! If its synthetic delta-8 THC which has to be made using non-plant materials, it’s illegal! Now consider that we only used synthesized delta-8 in products. Is it clear now? Great!

And of course, remember that the absence of a legal loophole, does nothing to stifle the power of the ‘no-one-will-do-anything-about-it’ loophole, which delta-8 THC squarely falls into.

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DisclaimerHi, I’m a researcher and writer. I’m not a doctor, lawyer, or businessperson. All information in my articles is sourced and referenced, and all opinions stated are mine. I am not giving anyone advise, and though I am more than happy to discuss topics, should someone have a further question or concern, they should seek guidance from a relevant professional.

The post DOJ Confirms That Synthetic Delta-8 THC is ILLEGAL appeared first on CBD Testers.

Delta-8 THC Threatens Legal Cannabis Industry

Let’s be honest, the cannabis market is becoming a cut-throat one, with everyone looking to make a buck, a range of low-level and possibly dangerous products on the market, and a rush by local governments to save revenue by outlawing what they can’t regulate. This brings up the question of whether a hemp-derived THC like delta-8 threatens the revenue of the legal cannabis industry, and explains why recreational states are quickly banning it.

Delta-8 THC runs the gamut from accusations that it threatens the legal industry, to governments like Texas which recently failed to fully criminalize it. What’s all the fuss about? Well, this alternate form of THC gives a milder psychoactive high, doesn’t create the anxiety that delta-9 can, and leaves users with more energy and less couch locking. There are very good reasons why delta-8 is liked by so many, and we have an array of great Delta-8 THC deals that can get you started with this new form of THC.

What is hemp-derived THC?

In short, THC and CBD are the two more prevalent cannabinoids in a cannabis plant. Some plants, which we use the term ‘marijuana’ for as a differentiator, have more than .3% of THCA in the plant, whereas the term ‘hemp’ implies cannabis with less than .3% THCA, and a higher amount of CBDA. The reason I use the terms ‘THCA’ and ‘CBDA’, instead of ‘THC’ and ‘CBD’, is because THCA and CBDA are the precursor acids that are found in cannabis flowers, and the actual compounds for which these measurements are made in fresh and dry plants. THC and CBD occur only after decarboxylation. Even the term ‘THC’ really isn’t a good one, as that merely stands for ‘tetrahydrocannabinols’, and the THC of interest is specifically delta-9.

It is much easier to extract THCA from marijuana plants since there’s way more of it there. In hemp plants, it only exists in small amounts, but CBDA exists in larger amounts. This CBDA can be converted into CBD, and then into delta-9 by way of a solvent and some processing. Realistically, this is not the issue, though. The issue, is that it can also be used to source delta-8 THC.

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Delta-8 THC is also naturally occurring, like delta-9, and is produced through the oxidation of delta-9 when it comes into contact with oxygen. This happens at an extremely low rate, however, so in order to produce enough to be used in products, human processing help is needed. This has caused an argument as to whether delta-8 should be considered a synthetic, and bound to laws related to THC synthetics.

The delta-8 legality issue

What should be pointed out about delta-8, is that while there is still talk of a federal loophole, and while it seemed briefly like this might be the case, it never was the case at all. Even if it had been, the US government ended all discussion of its federal legal status by officially adding it to the DEA’s Controlled Substances list, as an alternate name for ‘tetrahydrocannabinols’, along with delta-9, for regulation under DEA criminal code 7370. This wasn’t totally necessary in my opinion, as , even without considering it synthetic (which is indeed debatable), its still an analogue of delta-9, and therefore illegal due to the Federal Analogue Act.

CBD to delta-8

Plus, since its an isomer of delta-9, its also required that concentrations not be over .3% for processing or final products, which rules out the ability to use it anyway. As stated, whatever debate there was, ended with the Controlled Substances list update. However, why this is happening is a very good question, as delta-8 itself has not been found to be dangerous, but merely the possible processing techniques that can use harsh chemicals. I’ve said it several times already, but this means all that’s needed is regulation in the delta-8 industry, not an illegalization of it.

The reason we’re talking about this at all, is because the 2018 US Farm Bill legalized hemp production and the production of hemp-based products. The perceived delta-8 loophole gave the impression that THC could legally be sold, leading an industry to sprout up around it. Delta-8 isn’t merely a half-brother to delta-9, it has its own impressive list of characteristics that actually make it a better option for many recreational and medical users. This is primarily because delta-8 has not been shown to produce the anxiety and paranoia of delta-9, and it’s associated with less couch-locking effect, a slightly less intense psychoactive high, more energy, and a clearer-head.



It’s no wonder that recreational users who experience anxiety with delta-9 would like this product, and the same for medical users who don’t want to be weighed down during treatment. As delta-8 produces nearly the identical list of medical benefits, it therefore provides a really great workaround for some of the issues associated with delta-9. And so, legal or not, the industry has been pushing it out, with some worried that this hemp-derived THC will cannibalize legal THC sales. This is what’s being spoken about now in Washington state.

How delta-8 threatens the legal industry

First and foremost, any black market like delta-8 threatens a legal industry, that’s just the nature of it. So what’s going on here, is essentially no different than the legal industry fighting the standard cannabis black market, which it already is doing a lackluster job with, likely because of high prices due to taxes. In that sense, complaining about delta-8 is kind of useless, and simply highlights that its a black market product. Let’s be honest though, delta-8 threatens the legal industry way less than the standard cannabis illicit industry does, and this is not likely to change.

The complaint being made, regardless of how relevant – or even true it is, is that marijuana growers in Washington are afraid they’ll be put out of business by the growing delta-8 market. The reason given by growers, as per mjbizdaily, is that its cheaper to convert CBD into delta-8 and 9, than to grow marijuana plants. This sounds a bit suspect to me, since both cases involve growing cannabis plants, with the former method requiring extra processing, thereby likely making it more expensive. It sounds more like these growers are simply angry that they’re legal, and competing with an illegal part of the industry.

Delta-8 legal industry

As of right now, Washington state law requires marijuana to be grown only by licensed producers, with only their products available in dispensaries. This is, of course, how legalized location works, and is not specific to Washington at all, or even the cannabis industry. In any regulated industry, products must come from licensed providers only in order to be in concert with the law.

It should be pointed out, that much like with federal regulation which never legally allowed delta-8, neither does Washington state as of late April, 2021. At that time, the States Liquor and Cannabis Board (WSCLB), issued a statement regarding the banning of lab-created cannabis products from hemp. This is standard, as synthetics have never been covered by any legalization in any state. The statement made, talks about “the conversion of CBD, hemp, or both to Delta-8 THC, Delta-9 THC, or any other marijuana compound that is not currently identified or defined in the RCW, the WAC, or both.”

This clarifying statement came about because products were being sold that were in violation of the State’s law, which only allows pre-approved marijuana-infused products. Legal products must be grown and produced by licensed cultivators and producers. It was found that products were being sold containing other cannabinoids, like delta-8, and other additives.

The states that have moved to illegalize delta-8, like Colorado and Vermont, did so under the guise of safety, rather than closing a tax loophole. With statements about the possibility of dangerous processing (which, is actually a worthwhile fear, just not one being handled properly). The first concern of the WSCLB is that CBD is being altered to make synthetic equivalents of compounds found in the cannabis plant. Once again, remember synthetics are always illegal. The second issue is that these compounds have then turned up in regulated markets, though they are unregulated. These products are not allowed for sale under i-502, which governs marijuana products for sale, and makes sure all relevant parties are in concert with the RCW (Revised Code of Washington).

The RWC – which regulates controlled substances, makes clear that both synthetic and non-synthetic cannabinoids are covered under the term ‘tetrahydrocannabinols’, making both kinds Schedule I compounds. Under ‘unfair and deceptive practices’, the RWC states that it’s a deceptive practice to sell or manufacture “any product that contains any amount of synthetic cannabinoid.”

However, the illegality is not clear-cut, because the RWC allows for exemptions, mainly in the form of a legal recreational cannabis market. Whether this exemption of a controlled substance therefore counts for both delta-9 and delta-8 is debatable, and many see the overall statement as not clarifying delta-8 illegality. Regardless of possible future court debates, the current standing is that Washington’s LCB disallows synthetic cannabinoids from entering the legal market.

Delta-8 legal industry

Does it matter if delta-8 threatens the legal cannabis industry?

It depends how you look at it. It might not help marijuana farmers, but competition exists everywhere in life, and that’s just a reality. The only front that this matters on, is lost tax revenue. The government doesn’t care if a producer thinks they’re not making enough money, they sure don’t care in any other industry. The government cares about the rise of products being sold that it can’t make money off of, and these illegalizations function to attempt to rid these legal markets of illegal products.

In terms of the safety issues associated with synthetics, there really aren’t any thus far, yet it keeps being the line spoken by government officials. Take a look at this study from 2014 which notes that 1/2 of all respondents currently used, or had used synthetics, and yet no truly negative issues were mentioned. Whereas a study like this indicates that synthetics are used by a large percentage of cannabis users, government sites rarely make mention of total usage, instead focusing on negative cases without giving a frame of reference in terms of whether the numbers given represent a large or small percentage of the total.

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It does the same thing with vapes, talking up 68 deaths over more than a decade of time, while failing to make the immediate comparison to the 480,000 that die every year from smoking. It’s some of the worst fear marketing out there. The government has spread intense fear over compounds like K2 and Spice, yet people aren’t falling down dead, or having issues en masse, which creates a logical quandary. If they are so bad, how are so many people using them without a problem? This subject presents a massive contradiction between what the government is warning, to what’s actually going on. In fact, the government has no issue with pushing synthetics like Dronabinol, the only difference being that this is an approved pharmaceutical product that puts money in the government’s pocket.

Yes, safety issues do exist, which is why the industry should be regulated. This is exemplified by the vitamin e-acetate issue in vape cartridges, and other additives that have caused problems. We don’t want harsh chemicals in our products. But, way more importantly, we also don’t need opiates all over the place. Yet these drugs, which accounted for approximately 75,500 deaths between March 2019 and March 2020 in the US, are still given out in huge amounts, and in every state that has banned delta-8 because of safety concerns. It makes considerably more sense that governments are concerned with losing money, more than being worried about our collective heath. Or for that matter, the loss of profit to some producers in a competitive market.

Yeah, delta-8 will cut into other cannabis product revenues, because that’s how life works. Just like Walmart takes money away from higher end stores. Markets work off competition, and if marijuana growers are unhappy with another relevant product cannibalizing their sales, they should rethink their own strategies. But one thing for sure is, the government will never care about this. Not federally, and not on any state level.


This particular news story is no different than those of other states that have outlawed delta-8, or even the federal government. No government wants to lose tax revenue because of unlicensed products. The better question now is, why isn’t delta-8 being regulated to end this problem? My guess? The government already knows it can’t get it under control, or is waiting for a pharmaceutical version that its willing to push for its own cut. As far as the idea that delta-8 threatens the legal industry, sure, but that’s mainly related to tax collection. As far as marijuana growers losing out, they might, but that’s life in competitive markets, and they should really stop complaining.

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DisclaimerHi, I’m a researcher and writer. I’m not a doctor, lawyer, or businessperson. All information in my articles is sourced and referenced, and all opinions stated are mine. I am not giving anyone advise, and though I am more than happy to discuss topics, should someone have a further question or concern, they should seek guidance from a relevant professional.

The post Delta-8 THC Threatens Legal Cannabis Industry appeared first on CBD Testers.