On April 27, the Virginia Senate voted to send SB 591, which would have effectively eliminated the delta-8 tetrahydrocannabinol (THC) product market in Virginia, back to committee, killing the bill for this year’s legislative session. The move allows Virginia retailers to continue marketing the products for now despite growing calls nationwide for more regulation of delta-8 THC and other hemp-derived products that can produce psychoactive effects.

There are over 100 cannabinoids found in cannabis. Perhaps the most well-known of these is delta-9 THC, which is found in abundance in cannabis and has long been recognized as the main psychoactive ingredient in the plant — namely, the substance that causes users to feel “high.” But there are other psychoactive cannabinoids in cannabis as well, including delta-8 and delta-10 THC, albeit in lower quantities. One online retailer describes “the delta-8 high as partway between THC and CBD, with relaxing body effects and a less-potent head high,”[1] and delta-10 as producing a “more cerebral, sativa-like head high.”

So why the boom in delta-8 and delta-10 THC products now? They can be derived from hemp.

Hemp production was legalized with the Agricultural Improvement Act of 2018, or 2018 Farm Bill. At that time, Congress removed “hemp” and “tetrahydrocannabinols in hemp” from the Schedule I listings of “marihuana” and “tetrahydrocannabinols” in the Controlled Substances Act (CSA), 21 U.S.C. §§ 802, 812. To be considered “hemp,” Congress made clear the material had to possess limited concentrations of delta-9 THC. Specifically, the statute defined “hemp” as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and 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 0.3% on a dry weight basis.” 7 U.S.C. § 1639o.

In other words, to the extent delta-8, delta-10, and other extracts are derived from a cannabis plant with less than 0.3% delta-9 THC, they constitute “hemp,” which is federally legal. Currently in Virginia, hemp and CBD products can contain no more than 0.3% delta-9 THC if they are sold outside of a licensed dispensary, but there is no limit on how much delta-8 or delta-10 they can contain (or any other THC), so long as those other types of THC are derived from hemp. The amendments proposed by Governor Youngkin in SB 591 would have capped total THC (including delta-8 and delta-10) to 0.3%, effectively wiping out the delta-8 product market since that low of a concentration is unlikely to produce any psychoactive effect. The amendments would have also banned the use of synthetic delta-8 THC, but synthetic THCs in any concentration are already Schedule I controlled substances under the federal Controlled Substances Act.

Because “synthetic” is not clearly defined in the CSA, there was uncertainty at first as to whether all delta-8 THC was “synthetic” THC because of the intensive process required to extract enough of it from hemp. However, the Drug Enforcement Administration (DEA) more or less gave the hemp-derived delta-8 industry a green light in a letter to a state agency last fall. In response to the Alabama Board of Pharmacy’s request regarding the control status of delta-8 THC under the CSA, the federal agency concluded that “cannabinoids extracted from the cannabis plant that have a [delta-9]-THC concentration of not more than 0.3 percent meet the definition of ‘hemp’ and thus are not controlled under the CSA.” The DEA reiterated, however, that this interpretation would not apply to any delta-8 THC products that are “synthetically produced from non-cannabis materials,” indicating that the delta-8 would have to actually be produced in a lab in order to be “synthetic.” Such derivatives from non-cannabis materials remain controlled substances.

Nonetheless, delta-8 and delta-10 products are still not legal to be sold as a drug, dietary supplement, or food, according to the Food and Drug Administration (FDA). To the extent a manufacturer markets its delta-8 (or CBD) products as intended to affect the structure or any function of a consumer’s body, FDA’s position is that the product is an unapproved drug. In addition, “food” (almost anything edible that is not an approved drug or lawful dietary supplement) may not contain unapproved additives. Per FDA, “there is no food additive regulation that authorizes the use of delta-8 THC.”

On May 4, FDA issued warning letters to five companies for selling delta-8 products with impermissible health or therapeutic claims; for misbranding, such as lacking adequate directions for use; and for using delta-8 THC as an unapproved additive in foods, such as gummies, chocolate, caramels, chewing gum, and peanut brittle. The agency has also published a general health warning for delta-8 products, while it continues a larger evaluation of hemp-derived products to determine “whether any new FDA regulations may be warranted.”

Given delta-8 and delta-10 (and likely other THCs’) psychoactive effects, state lawmakers are also more specifically regulating products containing these extracts. According to an April survey, at least 20 states had regulated, restricted, or banned delta-8 THC products, while four more states were in the process of reviewing the substance’s status. In many states, a “ban” actually means that these products will only be available in licensed cannabis dispensaries where regulators can more easily track their production and sale, ensure that the products pass required contaminant testing, and prevent their sale to minors.

As processors continue to explore new ways to extract intoxicating compounds from hemp, states will continue to play the regulatory whack-a-mole game. Until comprehensive federal regulation occurs, we anticipate more action by states seeking to regulate all psychoactive components of the cannabis plant.

[1] THC is a distinct cannabinoid from CBD, which has little to no psychoactive effect.

Our Cannabis Practice provides advice on issues related to applicable federal and state law. Marijuana remains an illegal controlled substance under federal law.