By: Will Hutchins
The legalization of marijuana and hemp has become a central issue in state legislatures across the countries.[1] As more and more states legalize the drug, the nation appears to be trending towards full legalization, but Kentucky is undoubtedly on the back end of this trend.[2] Recreational marijuana remains completely illegal in Kentucky, but the federal government has carved out an exception for products derived from hemp.[3] Hemp is a close relative of cannabis, and products such as CBD are derived from it.[4] Some may have also heard of a recent legal “gray area” known as Delta-8 THC, a nice medium between regular marijuana and CBD that is also derived from hemp.[5] However, some may be asking, what is Delta-8 THC?
Tetrahydrocannabinol (THC) is a cannabinoid molecule in marijuana that gives the plant its psychoactive effects and produces the high.[6] However, there are different forms of THC.[7] The type of THC that most people unknowingly associate with marijuana is Delta-9 THC, which is the molecule derived from cannabis plants.[8] This type of THC is illegal federally and in Kentucky.[9] Delta-8 THC is extremely similar to Delta-9 except that they differ slightly molecularly, causing a slight tweak in the compound’s effects on one’s endocannabinoid system.[10] Without getting into the sophisticated chemistry of how the different molecular compound creates a different reaction in one’s body, it is simply important to note that Delta-8 gives many of the same effects as Delta-9, but it has noticeably diminished psychoactive effects on its users.[11] Many that struggle with the powerful high of Delta-9 THC find the decrease psychoactive effects of Delta-8 a much more mellow experience that comes with the many benefits found in Delta-9.[12]
So, knowing that Delta-8 THC can provide many of the benefits of Delta-9 THC while retaining the stability of CBD, is it legal?[13] The answer: it's complicated.[14] While marijuana remains federally illegal in the United States, the federal government has carved out exceptions for products derived from hemp.[15] In 2018, Congress passed the Agricultural Improvement Act of 2018, also known as“The Farm Bill.”The Act removed hemp and derivatives of cannabis with less than 0.3% of Delta-9 THC from the Controlled Substance Act (the federal law that makes marijuana illegal).[16] Because Delta-8 is derived from hemp plants, it is technically just as legal as CBD under the Farm Bill.[17] However, the Kentucky Department of Agriculture has a different view regarding Delta-8’s legality.[18] On April 19, 2021, the Department sent out a letter to hemp license holders, warning that distributing Delta-8 was illegal and “could lead to expulsion from the Hemp Licensing Program.”[19] “The U.S. Cannabis Council also addressed Delta-8 in a recent report” stating that the Farm Bill “is not a ‘loophole’” and that it “does not legalize the production of psychoactive drugs simply because the base material has been extracted from industrial hemp.”[20]
Despite the assertions of the Kentucky Department of Agriculture and the U.S. Cannabis Council, Delta-8 THC products are entirely derived from hemp.[21] They do not have greater than 0.3% Delta-9 THC, which would make the compound completely legal under federal law if produced in a manner compliant with licensing requirements.[22] Furthermore, the U.S. Cannabis Council’s characterization of Delta-8 THC as a “psychoactive drug” is a great over-exaggeration as Delta-8 has significantly less psychoactive effects than Delta-9.[23] The 2018 Farm Bill clearly legalizes the substance. The attempts of government actors to walk back federal legislation is a mere attempt to slow the inevitable full legalization of marijuana and an effort to retain regulatory control over the area.[24] Despite their obstruction, Kentuckians involved in the hemp industry are standing up for themselves.[25] In July this year, “an injunction was filed by the Kentucky Hemp Association against the Kentucky Department of Agriculture, the Kentucky State Police, and the Attorney General” to stop law enforcement from taking any action “against those selling Delta-8 THC” and hold the Department’s guidance on the issue invalid.[26] A hearing is scheduled in October of 2021 to address the injunction.[27] Thus, the legality of Delta-8 THC remains unclear and leaves stores that sell the product questioning where they stand with law enforcement.[28]
In conclusion, Delta-8 THC is a nice medium between CBD and traditional marijuana.[29] It offers a variety of the same benefits while having a lessened psychoactive effect on the user.[30] This balance can be highly beneficial to those who find CBD insufficient and traditional marijuana too powerful for their liking.[31] As Staff Sergeant Michael Lemmons, a veteran injured during combat in Baghdad, stated after using Delta-8 to manage his pain and PTSD, “’For the first time in my entire life, I feel like I am truly alive, I feel that I am 100% alive, happy, active, resilient.’”[32] The 2018 Farm Bill clearly legalizes products derived from hemp, of which Delta-8 qualifies, yet those wishing to sell it continue to receive warnings from the Kentucky government and law enforcement that it is still illegal under administrative regulations.[33] Court challenges to this stance are already in progress and will likely resolve this issue in the near future.[34] For now, Delta-8 THC remains technically federally legal while being treated as illegal by the state of Kentucky.[35] This inconsistency is a deliberate attempt to circumvent the clear intent of Congress to legalize substances such as Delta-8. The states actions to ban Delta-8 are even more surprising when considering that Mitch McConnell, a senator of Kentucky and the Republican leader in the Senate, was instrumental in passing the 2018 Farm Bill.[36] The legalization movement in Kentucky is continuously growing stronger, and Kentuckians who value the product are ready for change.[37] The governmental parties that continue to stand in the way of agricultural progress need to stand down so Kentuckians can light up and move on to greener pastures.[38]
[1] Marijuana Deep Dive, Nat’l Conf. St. Legislatures, https://www.ncsl.org/bookstore/state-legislatures-magazine/marijuana-deep-dive.aspx (last viewed Oct. 25, 2021) [https://perma.cc/EE8B-63N6].
[2] German Lopez, Marijuana legalization has won, Vox https://www.vox.com/2021/4/12/22371929/marijuana-legalization-connecticut-biden (last updated June 22, 2021, 2:12 PM) [https://perma.cc/MXR3-57QB]; Nima Kulkarni, Attica Scott & Lisa Willner, It’s time for Kentucky to legalize marijuana. Here’s how to help get it done, Courier J. (May 3, 2021, 5:47 AM), https://www.courier-journal.com/story/opinion/2021/05/04/want-marijuana-legalized-kentucky-heres-how-to-make-it-happen/7332139002/ [https://perma.cc/P8VV-CC7F].
[3] Kentucky, Weedmaps, https://weedmaps.com/learn/laws-and-regulations/kentucky (last viewed Oct. 25, 2021) [https://perma.cc/MLU4-MVS5].
[4] Allie Beckett, 5 Plants You Probably Didn’t Realize Were Related to Cannabis, Weedmaps (June 16, 2017 10:16 PM), https://weedmaps.com/news/2017/06/5-plants-you-probably-didnt-realize-were-related-to-cannabis/ [https://perma.cc/6TJ7-U8P7].; Danielle Dresden, What is the diference between hemp CBD and cannabis CBD?, Med. News Today (July 23, 2020), https://www.medicalnewstoday.com/articles/hemp-cbd-vs-cannabis-cbd#:~:text=Hemp%20seed%20oil%20and%20CBD%20oil%20both%20derive%20from%20the,tend%20to%20be%20very%20low. [https://perma.cc/AF8J-9M7S].
[5] In Touch Staff, Sponsored Content: Delta-8 THC: The Gray Area of Cannabinoids, In Touch (July 27, 2021, 10:20 PM), https://www.intouchweekly.com/posts/delta-8-thc-the-gray-area-of-cannabinoids/ [https://perma.cc/96AW-AFE9].; Don Cazentre, What is Delta 8 THC? It’s not marijuana, but it’s creating a buzz in NY, Olean TImes Herald (May 11, 2021), https://www.oleantimesherald.com/news/what-is-delta-8-thc-it-s-not-marijuana-but-its-creating-a-buzz-in/article_ee85625c-7418-55fb-9f8f-b4de45ceb988.html [https://perma.cc/MG2Y-577Z].
[6] REAL TESTED CBD, Delta-8 THC vs Delta-9 THC: How Do They Differ?, The Mercury News (July 7, 2021, 10:21 AM), https://www.mercurynews.com/2021/07/07/sponsored-delta-8-thc-vs-delta-9-thc/ [https://perma.cc/354R-W4D5].
[7] Docmj, The Different Types of THC & Their Benefits, DOCMJ (May 23, 2019), https://docmj.com/blog/2019/05/23/the-different-types-of-thc-their-benefits/ [https://perma.cc/BG97-8KSJ].
[8]REAL TESTED CBD, supra note 6.
[9] What Is Delta 9 THC AND Where Is It Legal?, tanasi (July 24, 2021), https://tanasi.com/blog/what-is-delta-9-thc-and-where-is-it-legal/ [https://perma.cc/4ZFY-DCF9].
[10] REAL TESTED CBD, supra note 6.
[11] Id.
[12] See id.
[13] Id.
[14] Kaitlin Sullivan, Delta-8 THC is legal in many states, but some want to ban it, Nat’l Broadcasting Company News (June 28, 2021, 8:10 AM), https://www.nbcnews.com/health/health-news/delta-8-thc-legal-many-states-some-want-ban-it-n1272270 [https://perma.cc/6KQV-M83F].
[15] Stacy Barrett, Medical Marijuana and Federal Law, Criminal Def. Law., https://www.criminaldefenselawyer.com/resources/criminal-defense/federal-crime/medical-marijuana-federal-laws.htm (last viewed Oct. 25, 2021) [https://perma.cc/4ZFY-DCF9].; Brunilda Nazario, Marijuana, Hemp, CBD Oil: What’s Legal and Where, WebMC (Jan. 08, 2019), https://www.webmd.com/pain-management/news/20190108/marijuana-hemp-cbd-whats-legal-and-where [https://perma.cc/2W9V-GLKR].
[16] Agriculture Improvement Act of 2018, Pub. L. No. 115-334, 132 Stat. 4490.; 21 U.S.C.A. § 812 (2012).
[17] Philip Kiefer, Why you’re suddenly hearing about delta-8 THC, POPULAR SCI. (June 30, 2021, 7:00 PM), https://www.popsci.com/science/delta-8-thc/ [https://perma.cc/BZN8-6XQT].; Agriculture Improvement Act of 2018, supra note 16.
[18] Heather Fountaine, Delta-8 Debate: Is it Legal? Depends on Who You Ask, WHAS 11 (Aug. 26, 2021), https://www.whas11.com/article/news/investigations/focus/delta-8-is-it-legal/417-fa0ba03e-38ef-446e-9fad-22201419c8d3 [https://perma.cc/U7ZT-SWZJ].
[19] Id.
[20] Id.
[21] Id.; Cazentre, supra 5.
[22] Britt E. Erickson, Delta-8-THC craze concerns chemists, chemical & Engineering News (Aug. 30, 2021), https://cen.acs.org/biological-chemistry/natural-products/Delta-8-THC-craze-concerns/99/i31 [https://perma.cc/6PR6-W9Q3].; Agriculture Improvement Act of 2018, supra note 16.
[23] REAL TESTED CBD, Supra, note 6.; Fountaine, supra note 18
[24] Agriculture Improvement Act of 2018, supra note 16.; Kulkarni, supra note 2.
[25] Kulkarni, supra note 2.; Crystal Sicard, Kentucky Hemp Association, Department of Agriculture Spar over Delta-8 THC, Spectrum News 1 (July 17, 2021), https://spectrumnews1.com/ky/louisville/news/2021/07/17/kentucky-hemp-association-files-injunctions
[26] Fountaine, supra note 18.
[27] Id.
[28] See Sicard, supra note 25.
[29] See Cazentre, supra note 5.
[30] REAL TESTED CBD, supra note 6.
[31] See id.
[32] Fountaine, supra note 18.
[33] Agriculture Improvement Act of 2018, supra note 16.; Sicard, supra note 25.; Fountaine, supra note 18.
[34] Ryan Van Velzer, Kentucky Hemp Association Sues State Over Delta-8,, Western Ky. U. (July 21, 2021), https://www.wkyufm.org/post/kentucky-hemp-association-sues-state-over-delta-8#stream/0 [https://perma.cc/UB7S-AMK6].
[35] Chris Roberts, The Feds Are Coming For Delta-8 THC, Forbes (Sept. 17, 2021, 3:59PM), https://www.forbes.com/sites/chrisroberts/2021/09/17/the-feds-are-coming-for-delta-8-thc/?sh=46c505e16d27 [https://perma.cc/CFR9-X7SD].; Danielle Grady, Everything You Need To Know About Delta 8, The ‘Legal Weed,’ In Kentucky, LEO WKLY., https://www.leoweekly.com/2021/08/everything-you-need-to-know-about-delta-8-the-legal-weed-in-kentucky/ (last viewed Oct. 26, 2021) [https://perma.cc/Y9TJ-TW4R].
[36] Id.;John Hudak, The Farm Bill, Hemp Legalization and the Status of CBD: An Explainer, Brookings (Dec. 14, 2018), https://www.brookings.edu/blog/fixgov/2018/12/14/the-farm-bill-hemp-and-cbd-explainer/ [https://perma.cc/U9CY-VZ3C].; About Mitch McConnell, Mitch McConnell Republican Leader, https://www.republicanleader.senate.gov/about (last viewed Oct. 26, 2021) [https://perma.cc/578B-PNDD].
[37] Kyle Jaeger, Majority of Kentucky Residents Back Legalizing Marijuana For Any Purpose, Poll Finds As Medical Hearing Approaches, Marijuana Moment (Feb. 6, 2020), https://www.marijuanamoment.net/majority-of-kentucky-residents-back-legalizing-marijuana-for-any-purpose-poll-finds-as-medical-hearing-approaches/ [https://perma.cc/V235-GGTM].; Fountaine, supra note 18.
[38] Fountaine, supra note 18.