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What Is Delta-8, and Is it Different From Weed?

Delta 8 is actually Delta 8 tetrahydrocannabinol, or Delta 8 THC, and is a less potent version of Delta 9 THC, the active component in Cannabis. The molecular structure of Delta-8 THC is a variation of Delta-9 THC, meaning that it is not technically classified as Cannabis under federal and some state laws. Ordinarily, this would still be illegal, as Delta 8 would be considered an analogue of cannabis. Legislation passed in 2018 makes this less clear, as it reconsidered what qualifies as cannabis.

What is an Analogue?

An analogue is any variation of a drug that is already illegal, meaning any change in the molecular structure which produces the same or similar effects as the original substance, and is intended for human consumption. Analogues are fairly common creations by those trying to get around drug laws, so the Federal Analogue Act was passed to counter this.

What Makes Delta-8 THC Legal?

In 2018 Congress passed a farm bill that was intended to allow farmers to grow hemp, rather than cannabis, so the plant could be cultivated commercially and used as a crop rather than a drug. The bill defined Cannabis as having more than 0.3 percent Delta-9 THC, and hemp as anything less. It did not address Delta-8 THC, which leaves it to be classified as hemp, and is theoretically legal. If this holds true, it means that Delta-8 is no different from a house plant in the eyes of the federal government.

Other Legal Considerations

Delta-8 THC could still be considered illegal under DEA guidelines in spite of the farm bill. These guidelines specifically identify any “synthetic” form of cannabis or THC as illegal, but does not clearly define the term “synthetic”. Delta-8 THC is derived from hemp by chemical processes, which could cause it to be considered as a synthetic form of cannabis. This would dispute its classification as hemp and make it illegal.

Is Delta-8 Federally Legal or Illegal?

It is currently unknown whether Delta-8 is legal or illegal under federal law. The DEA is currently reviewing its distinction between hemp and cannabis, and may take an explicit position on where Delta-8 THC stands in the future. Legality could also be decided by future court cases, or the original farm bill could be amended to allow or ban Delta-8 specifically. Several media outlets have declared that it is legal, but this is still a gray area and no one can say for sure whether or not this is true.

Can I fly With Delta-8 THC?

Attempting to fly with Delta-8 THC is a gamble. Many believe that its exclusion in the 2018 farm bill makes it legal, but this assumption has not been tested in court and cannot be confirmed. Another logistical issue is how to prove that the substance you are carrying is Delta-8 THC rather than cannabis. Cannabis, of course, is still federally illegal, so flying with it is a federal crime. If you are caught trying to fly with Delta-8, you may be detained until there is confirmation that the substance you have is not cannabis. Even then, you risk challenging the legality of a murky area, and you are at the mercy of a judge. Simply put, it is not worth trying to fly with Delta-8 THC. If you are flying to a state where Delta-8 is illegal, then you absolutely cannot fly with it.

Is Delta-8 THC Legal in My State?

Several states have blocked Delta-8 THC and made it illegal, such as:

  • Alaska
  • Arizona
  • Arkansas
  • Colorado
  • Delaware
  • Idaho
  • Iowa
  • Mississippi
  • Montana
  • Rhode Island
  • Utah

These states have concerns about the rapid adoption of the drug and the lack of regulation surrounding it. Some of these states have not yet legalized cannabis, so it is logical that they are opposed to Delta-8, but others are unclear on its safety.

As Delta-8 THC continues to become more popular, legislators will be forced to address it. In the coming months and years, many states, along with the federal government, will likely release guidelines for the manufacture of Delta-8 or ban it entirely. It cannot continue to exist in a legal gray area for long.

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