Have you ever walked into your local bodega and wondered how they could sell stuff that looks and smells just like cannabis? That "stuff" is Delta-8-tetrahydrocannabinol (THC), an isomer of Delta-9-THC (the compound that most people purchase when they buy cannabis products at a state-legal dispensary).  Delta-8 and Delta-9 are very similar, with the only real chemical difference being where the double bond sits on the carbon chain (on the 8th carbon chain for Delta-8 and on the 9th carbon chain for Delta-9). Just like Delta-9, Delta-8 is a natural component of the cannabis plant.  However, due to the small amounts of Delta-8 THC found in the plant itself, most Delta-8-THC is created in a lab.  If you're reading this in New York, the smoke shop around the corner isn't selling Delta-8 due to the recent legalization of recreational cannabis – it's because of a legal loophole that New York is now actively trying to close (more on that later).
 
You're probably wondering, "how is Delta-8 legal at the federal level?" Well, the answer to that may be that "it's not".  The 2018 Farm Bill legalized hemp and "all hemp-derived cannabinoids." However, in August 2020 the DEA released an interim final rule, which would make the production of Delta-8 THC illegal. Defenders of Delta-8 argue that because it is "derived from hemp", it is legal under the Farm Bill. Opponents point out that Delta-8 is a derivative of cannabis that has psychoactive effects and argue that – because it appears in the plant in such small quantities – it's just the byproduct of an unforeseen chemical alteration to hemp, which is not what the 2018 Farm Bill was meant to authorize.  In other words, Delta-8 walks, talks and smells like cannabis, and should therefore qualify as marijuana for the purposes of the Controlled Substances Act and should be subject to the same state and local regulatory requirements as Delta-9 THC. 
 
As with all things cannabis, the question of how to deal with the sale and regulation of Delta-8 varies state to state.  Most states are currently taking a "ban it now, and study it later" approach – as fifteen states have already taken steps to restrict or ban Delta-8, including New York, Connecticut, Colorado, Washington, and Vermont.  Meanwhile, six other states, including Michigan and Illinois, are considering legislative bans. New York recently updated their draft regulations for the manufacturing, processing and sale of "cannabinoid hemp" products (i.e.  CBD) – which have yet to go into effect – to prohibit processors from using "synthetic cannabinoids or Delta-8-THC created through isomerization, in the extraction or manufacturing of any cannabinoid hemp products."  In short, New York appears poised to close the loophole that allowed Delta-8 to escape regulatory oversight for years.
 
With states continuing to ban or restrict the production and sale of Delta-8, it is likely that federal regulators will have to specifically address the topic in the near future to clear up the current confusion.  In the meantime, it will fall to the states to decide when and how Delta-8 can be sold (if at all).  Be sure to check out our That's Just Your Opinion Man section below for an explanation of why that's so important to the cannabis industry as a whole. 

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