Researchers still debate how many species the cannabis plant is divided into. Some claim there’s only one – Cannabis sativa. Others insist Cannabis indica and Cannabis ruderalis are distinct species. Between all three, there are over 700 strains and hybrids on the market today. Strains are named by breeders, with the earliest landrace strains named after geographic locations (e.g., Afghan Kush, Colombian Gold, etc.). As breeders combined strains to form hybrids, products like AK-47 and Agent Orange appeared. All cannabis species and strains share a common aspect – they contain over 100 cannabinoids, the most prevalent of which are cannabidiol (CBD) and tetrahydrocannabinol (THC). But even THC comes in various forms, as we’ll discuss below.
THC and CBD
THC and CBD attract so much attention because of how they interact with the human endocannabinoid system. As Harvard Health explains, the endocannabinoid system (ECS) “regulates and controls many of our most critical bodily functions such as learning and memory, emotional processing, sleep, temperature control, pain control, inflammatory and immune responses, and eating.”
Studies have shown THC and CBD have a wide range of effects on the ECS, including potential benefits such as pain relief, mitigating anxiety symptoms, and reducing nausea in chemotherapy patients. Despite such findings, the Food and Drug Administration has never approved cannabis for medical use (though in 2018 it approved the non-intoxicating cannabinoid Epidiolex for epilepsy treatment, plus three synthetic cannabis drugs).
Largely due to THC’s psychoactive nature, cannabis sits alongside the likes of heroin, LSD, and mescaline on the Drug Enforcement Agency’s list of Schedule I drugs. Schedule I is defined as having “a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision.” But the term THC usually refers to the Delta-9-THC isomer (chemical name Δ9-THC, which is not the only type on the market these days.
Individual states have fought back against the federal cannabis ban by legalizing or decriminalizing cannabis for medicinal and, in several states, recreational use. See DISA’s interactive Map of Marijuana Legality by State for current status information regarding state-specific legalization, medical use, and recreational use.
New Kids on the Block - Detal 8 and Delta 10
Since CBD is a non-psychoactive ingredient, there are countless legal over-the-counter products in stores that contain CBD…as long as it comes from hemp, not cannabis. But Delta-9-THC remains illegal at the federal level because of its effects on the brain, which can include an “altered perception of time” and “heightened sensory perception.”
Of note, there are now two other versions of THC being sold in various products around the country – Delta 8 and Delta 10. Both are less potent than their Delta-9 cousin, which is considered the “natural form” of THC and is generally used for recreational purposes. It is relatively cheap compared to Delta-8 and Delta-10.
Delta-8, though it too is naturally occurring, can also be made by chemically converting CBD, which is more economically feasible than extracting it in pure form. Delta-8 is slightly different on a molecular level than Delta-9 and reacts differently in the human body. It is approximately half as potent as Delta-9, though products vary. Chemically converted Delta-8 is commonly used in edibles (such as gummies) or for vaping. It allegedly has fewer and milder side effects than Delta-9, yet can still produce the feeling of being high.
Delta-10, yet another THC offshoot, is about 20-30% less potent than Delta-8, and therefore approximately 1/2 the strength of Delta-9. There is little research on Delta-10 to date, but it is claimed to be “more energizing and nootropic than other versions of THC.”
The 2018 Farm Bill
Interestingly, in its naturally-derived state, Delta-8 is federally legal because of a technical oversight in the 2018 Farm Bill. As noted by the FDA, the Farm Bill (or Agriculture Improvement Act), “removed hemp, defined as cannabis (Cannabis sativa L.) and derivatives of cannabis with extremely low concentrations of the psychoactive compound delta-9-tetrahydrocannabinol (THC) (no more than 0.3 percent THC on a dry weight basis), from the definition of marijuana in the Controlled Substances Act (CSA).”
Though the bill referenced Delta-9 as THC, it made no mention of Delta-8 or Delta-10, which can be produced by chemically converting legal, hemp-derived CBD. The passage of the Farm Bill inadvertently undammed a huge supply of CBD distillate that was previously hard to get rid of. This caused CBD prices to plummet “from $25,000 per kilogram to as little as $500,” effectively making it suddenly very cheap to convert CBD into Delta-8 THC.
Suddenly, because of an unintended loophole, a potentially “synthetic” version of THC was unleashed without clear federal guidance to regulate it. As the New York Times noted, “delta-8 is chemically THC, but legally hemp.”
The Federal Analog Act
Even though the Farm Bill opened the floodgates for Delta-8 products, the Federal Analog Act states that “Any controlled substance analogue that is manufactured, formulated, sold, distributed, or marketed with the intent to avoid the provisions of existing drug laws” is still considered a controlled Schedule I substance. Thus, Delta-8 and Delta-10 could be considered illegal. But are they?
The Federal Analog Act, passed back in 1986, was meant to fight the rising tide of designer drugs being made to bypass existing laws. As Leafly Senior Editor David Downs noted to KCRW, “You can think of [Delta-8] as like a designer drug they found in hemp or as something that’s really popular in prohibition states among people who want to use marijuana.” So, it seems like Delta-8 and Delta-10 could fall under that “designer drug” label. Yet so far, the federal government hasn’t deemed them as such.
So, are Delta-8 and Delta-10 legal or not?
In an odd way, the legality of Delta-8 and Delta-10 is similar to the dispute between the federal government and the 50 states regarding the legality of cannabis. Only this time, the roles are reversed.
Cannabis is illegal at the federal level, yet Delta-8 currently isn’t. In contrast, some states are legalizing and decriminalizing cannabis while others are passing laws to make Delta-8 illegal.
As state legislatures continue to review the issue and propose laws, it is vital to keep up-to-date with current statuses. Discover Magazine notes that as of August 2022, the below 30 states (plus the District of Columbia) consider Delta-8 legal. However, of the list below, some only consider hemp-derived Delta-8 to be legal, not cannabis-derived. This in-line with states that allow the sale of CBD with THC levels below 0.03%.
- Alabama
- California
- Florida
- Georgia
- Hawaii
- Illinois
- Indiana
- Kansas
- Maine
- Maryland
- Massachusetts
- Minnesota
- Missouri
- New Hampshire
- New Jersey
- New Mexico
- North Carolina
- Ohio
- Oklahoma
- Oregon
- Pennsylvania
- South Carolina
- South Dakota
- Tennessee
- Texas
- Virginia
- Washington
- West Virginia
- Wisconsin
- Wyoming
- Washington, D.C.
Three states (Connecticut, Michigan, and Nevada) currently regulate the sale of Delta-8 products just as they do recreational cannabis. Three other states (Mississippi, Nebraska, and Kentucky) currently don’t list sufficient details about how they treat Delta-8.
All remaining states currently list Delta-8 as illegal. Those states are:
- Alaska
- Arizona
- Arkansas
- Colorado
- Delaware
- Idaho
- Iowa
- Louisiana
- Montana
- New York
- North Dakota
- Rhode Island
- Vermont
- Utah
Anyone bringing Delta-8 from a state where it is legal into a state where it’s not legal could face criminal charges. Stores selling Delta-8 should list their state registration number and certificate of analysis, listing exactly what their product contains. Buyers may also request to see documentation from laboratory results to determine how the Delta-8 was made (e.g., extracted naturally, chemically converted, taken from hemp or from cannabis, etc.).
