What is Delta-8 THC?

Delta-8 is a cannabinoid that is a legal derivative of the hemp plant, made from CBD, and all finished goods/products are below the 0.3%Delta-9 THC level, which makes them legal as written in the 2018 federal farm bill and KRS 260.850.

Delta 8 is a naturally occurring substance in the hemp plant, not a synthetic drug as the Kentucky Department of Agriculture claims, in fact the term “synthetic” is not found in the controlled substance act list of definitions regarding hemp products.

The Implementation of the Agriculture Improvement Act of 2018, 85 FR 51639-01 changed the definition of Tetrahydrocannabinols. It does not include tetra hydrocannabinols in hemp. “Tetrahydrocannabinols does not include any material,compound, mixture, or preparation that falls within the definition of hemp set forth in 7U.S.C. 1639o.

The Farm Bill makes no distinction between naturally occurring cannabinoids and those which have been derived or isomerized from the hemp plant.

Why is there debate on the legality of Delta-8 hempproducts?

On April 19, 2021, The Kentucky Department of Agriculture’s general counsel, Joe Bilby, sent a letter to all hemp license holders in the state advising that Delta-8 THC is illegal and they could have their licenses revoked. The opinion mentioned the federal controlled substance list, but failed to mention the2018 federal farm bill, which removes hemp products from that list, or any law in the KRS code that makes the cannabinoid illegal. As a result, the general counsel’s opinion is expected to face fierce legal challenges.

Have police in Kentucky been going after businesses selling Delta-8 hemp products?

On June 15, 2021, the Kentucky State Police used the Kentucky Department of Agriculture letter to obtain warrants and raid two hemp stores in Morehead for Delta-8hemp products, charging the owner with trafficking marijuana. On June 23, 2021, The Casey County sheriff’s office confiscated Delta-8 products from five stores and warned the owner that he would be charged with felonies if he continued to sell it.

How can you tell the difference between Delta-8 THC and Delta-9 THC?

If the Kentucky State Police or any law enforcement did a field test on products, they would show positive for THC, as the two compounds are molecularly similar. They would not be able to tell which THC variant it is or how many milligrams per milliliters or even the percentage.

There are approximately 30,000 isomers of THC. Delta-9THC is the only one that is illegal from the hemp plant and only if it is over 0.3% on a dry weight basis. All Delta-8products on the market are made from CBD, which is considered to be an isomer or derivative.

KRS 260.850, which echoes the federal farm bill, clearly states the legality of “… all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than three-tenths of one percent (0.3%) on a dry weight basis;” and all of these products are tested to insure that they are in fact compliant with both federal and state laws.

How are states other than Kentucky treating Delta-8hemp products?

Tennessee allows it. West Virginia gives out certificates for it. Ohio asks that you document how much Delta-8 is in the package. You can even obtain it in Indiana. Most states have taken the position that ALL parts of the hemp plant are legal. Except for Kentucky and a few others that follow Kentucky’s Department of Agriculture’s opinion. By potentially outlawing this product Kentucky is missing out on what could be a significant revenue source for the state.

What is the option of the Hemp Industries Association on Delta-8 THC?

The Hemp Industries Association sent a press release on June 22, 2021 advising that the HIA stands for all parts of the hemp plant – IncludingDelta-8 THC. https://thehia.org/the-hia-stands-for-all-parts-of-the-hemp-plant-including-delta-8-thc

A copy of Attorney Rod Kight’s opinion can be found here: https://thehia.org/wp-content/uploads/2021/06/HIA-Position-Statement-on-Dellta-8-and-Hemp-Cannabinoids.pdf