What Is Delta-8 THC And Why Are States Banning It?

If you keep up with the latest happenings in the world of cannabis, you’ve likely heard of delta-8 THC.

With products available for purchase online, in head shops and even at gas stations, delta-8 is being marketed as “weed light,”  a way to “get high without the paranoia” and even “legal weed.” But is that actually true? And what exactly is it?

Below, experts break down the most common questions about the substance.

What is delta-8 THC?

Delta-8 tetrahydrocannabinol aka delta-8 THC is a psychoactive compound that is present in the cannabis plant. It is an isomer in other words, a minor chemical variant of delta-9 THC, which is commonly known as just THC. 

“Delta-9 is highly concentrated in marijuana flowers while delta-8 has a very low concentrations in marijuana plants,” Dr. Rahi Abouk , an associate professor and director of Cannabis Research Institute at William Paterson University, told HuffPost.

Basically, cannabis plants tend to contain much higher quantities of delta-9 THC than delta-8 THC, so when we talk about THC, we’re generally referring to the former. Both components are psychoactive, however, so they help give the drug its mind-altering or “high”-producing effect. 

Delta-8, as it’s usually called, is sold online and in brick-and-mortar stores in the form of products like gummies, vape pens, tinctures and edibles.

How does it compare to the THC we know?

As isomers, delta-8 and delta-9 contain the same chemical formula, but the molecules are arranged differently. 

“Notably, the ‘delta’ is simply a chemical nomenclature that refers to the position of a double-bond that exists between two carbons found in a cyclic ring structure within the molecule,” said Dr. Gregory L. Gerdeman , a neuroscientist and educator whose research has focused on cannabis and the endocannabinoid system. “That double bond could be located anywhere in that ring, and the naming would simply follow it: delta-8, delta-10, delta-6 all of these are chemically possible, and can be made in a lab.”

Delta-8 interacts with the same cannabinoid receptors in our nervous system  known as CB1 and CB2 as delta-9 does, but their interactions are weaker. The effects are similar but it’s generally considered to be less potent. 

“Delta-8 is purported to have many of the good effects of delta-9 good mood, relaxed, high without the bad ones like paranoia and panic, so it’s supposed to be the cannabis that doesn’t make you anxious,” said Dr. Peter Grinspoon , a cannabis expert and instructor at Harvard Medical School. “Whether that’s true or not is hard to say. It’s all anecdotal.”

Gerdeman emphasized that delta-8 is not some magic THC that only produces positive effects.

“I strongly disagree with the branding that it ‘elevates’ the user but without any of the anxiety or paranoia,” he said. “At this point, I have seen and heard very many examples of people, including experienced weed smokers, over-consuming a delta-8 product and going into a very distressed mental space, similar to going way too far with traditional cannabis edibles.”

How are delta-8 THC products created?

Another major difference between delta-8 and delta-9 concerns the creation of commercially available products.

As noted, delta-8 is naturally occurring in cannabis plants, but it’s in very trace amounts (so small, in fact, that Gerdeman suggested that scientists might only observe delta-8 because it can be created by oxidative breakdown, which may occur in their very process of chemical analysis). Because of those small quantities, delta-8 products can’t really be naturally produced like those with delta-9.

“Delta-9 products are most likely extracted directly from the cannabis plant,” Abouk noted. “However, delta-8 is likely synthesized and concentrated through a chemical process.”

Commercial delta-8 is mainly obtained from hemp, which is a plant in the cannabis family that is low in THC. Hemp also contains cannabidiol, or CBD, which is another isomer of THC, and it’s fairly easy for labs to convert CBD to delta-8 THC.

Thus, the delta-8 products you see online and in stores are likely synthesized from CBD rather than extracted from hemp plants because CBD is available in higher volumes.

Is delta-8 THC legal?

Here’s where things get complicated. The reason more people have started encountering delta-8 in recent years stems from a piece of federal legislation that put its legal status in a bit of a gray area.

“Congress passed this seemingly innocuous farm bill in 2018, which for the first time drew a legal distinction between marijuana and hemp,” said Robert Mikos , a professor of law at Vanderbilt University whose research has focused on marijuana policy. “Prior to that, all cannabis products were considered marijuana and were forbidden, but this bill narrowed the definition of marijuana under federal law, which set into motion a chain of events.”

The Agriculture Improvement Act of 2018, aka the 2018 farm bill, legalized hemp  by removing it from the Controlled Substances Act. As a result, hemp which is defined as any cannabis plant that contains less than 0.3% delta-9 THC is no longer a Schedule I substance. The same goes for hemp derivatives like CBD, which as we’ve learned, can be used to synthesize delta-8.

“People view this as a loophole around the federal marijuana ban because the legal definition hinges on the presence of delta-9 THC but not delta-8 THC,” Mikos noted. “It doesn’t cover other synthetic or naturally found chemicals like delta-8.”

Basically, enterprising entrepreneurs have interpreted the law to mean that products containing higher quantities of delta-8 THC are legal as long as they come from the CBD in hemp, rather than marijuana. And with the increased production of CBD oils, edibles and other products following the farm bill, supply surpassed demand, prices fell, and many entrepreneurs decided to focus on delta-8 instead.

“The goal has been to produce delta-8, and claim that it is fully legal at the federal level, since it was never explicitly outlawed as a Schedule I substance by DEA,” Gerdeman said. “This is controversial. Delta-8 and the other isomers one can create from CBD are illegal according to the Federal Analogue Act of 1986.  But the proponent interpretation is that, since the 2018 farm bill legalizes ‘isomers and derivatives’ of hemp, this supersedes and overrides any use of the Analogue Act to criminalize hemp-derived molecules, whether they are psychoactive analogues of delta-9 THC or not.”

How does the government see delta-8 THC now?

In response to the growing popularity of delta-8 THC, the FDA has issued warning letters to companies that sell products containing delta-8. The letters focus on “the illegal marketing of unapproved delta-8 THC products by companies as unapproved treatments for various medical conditions or for other therapeutic uses,” as well as “drug misbranding” and the use of delta-8 as a food additive. 

Gerdeman noted that the Drug Enforcement Administration does not appear to have taken a strong stance but that local and state law enforcement agencies have raided delta-8 facilities in multiple states.

“Cannabis products are in this confusing realm where they can be subject to different laws or regulations, but chemists can always stay a step ahead of congress and make tweaks that fall into a legal gray zone,” Mikos said. “The problem is that lawmakers chose to define a drug based on a plant and regulate the plant, rather than the chemicals produced by a plant.”

To date, 20 states have banned or restricted delta-8 THC and its legal status is under review in four more. Age restrictions can vary based on the state or individual seller (though most require buyers to be 21+). 

“Now that this has caught on, a lot of states are scrambling to close this loophole,” Mikos said. “A lot are trying to go back and tweak their definition of hemp and not make the definition hinge entirely on delta-9, to instead cover other synthetic or naturally found chemicals like delta-8.”

Federal courts have finally waded into the murky waters surrounding delta-8′s legality. On May 19, the U.S. Court of Appeals for the 9th Circuit ruled in a trademark case that vapes containing delta-8 THC are “lawful” under the farm bill. The ruling noted that “it is for Congress to fix its mistake” if this was an unintended consequence of the legislation. 

“I think that some lawmakers have a reasonable argument that the U.S. Congress was not at all intending to legalize an intoxicating drug when they allowed the 2018 farm bill, which is a massive piece of legislation, to include that hemp language,” Gerdeman said. “I can certainly attest that many hemp farmers never realized that what they were growing was something that would end up turning into a drug that gets people high and can be sold to minors.”

In the meantime, cannabis industry entrepreneurs continue to take advantage of the loophole and sell delta-8 THC products that get users high both in stores in the states where it remains legal and online to consumers in places where it is not. Contrast that to the fact that estimates suggest more than 40,000 Americans are currently incarcerated for marijuana-related offenses, and you’ve got a stark picture of the harmfully inconsistent reality of American drug policy. 

Is delta-8 THC safe?

“As for the safety of delta-8, the optimistic part of me thinks, ‘Well, it’s so similar to delta-9, I wouldn’t lose too much sleep over it,’” said Dr. Daniele Piomelli , director of the Center for the Study of Cannabis at the University of California, Irvine. “But the more skeptical part of me thinks, ‘It is similar, but what if that small difference is capable of producing effects delta-9 doesn’t have?’ It might combine with some other receptor we don’t know about.”

Although there have been countless studies into the efficacy and effects of delta-9 THC, the same can’t be said for delta-8 THC. So while it’s tempting to say delta-8 is “natural” and therefore harmless, the scientific community hasn’t fully researched the impact of this cannabinoid when taken in larger quantities than are naturally found in cannabis plants.

“The health risks are unknown,” Abouk said. “The FDA has reported over 100 reports of adverse events in patients who have consumed delta-8 THC products.” 

Another concern relates to production and regulation, or rather, lack thereof. 

“There’s no quality control over the process, so if you buy a vape or gummy that purportedly has with delta-8, who knows if it has delta-8, delta-9 or toxic byproducts,” Grinspoon noted. “It’s synthetically produced and completely unregulated, which can be dangerous. Anyone could make anything called delta-8 and sell it. It’s a shame because we might find a million medicinal benefits and other good things about actual delta-8 if we were to regulate and study it like we would any regular medicine.”

Although he sees value in delta-8 THC by itself as a safe therapeutic, Gerdeman expressed concerns about contamination in unregulated commercial labs synthesizing delta-8 THC. 

“The basic reaction is quite easy to do, but it is not so easy to do cleanly,” he said. “These processes often generate a whole range of known and unknown byproducts that do not occur in natural cannabis. Many of these may be toxic to some degree, and the typical industry ‘lab testing’ does not even know how to look for these things.”

He also noted that it’s easy and common for labs to understate the amount of delta-9 THC that is also created in the process, so delta-8 products can wind up being much more potent than advertised. 

“I worry about super potent cannabinoids becoming more widespread because of the revenue stream that so many labs are getting accustomed to, and the tendency to compete for the next hot selling ‘legal high,’” Gerdeman said. “Legalize and regulate natural cannabis, and the demand for chemically made substitutes will drop off dramatically, in my opinion.”