You may have heard about delta-8 marijuana or delta-8 THC gummies, and you may have seen them in stores in Myrtle Beach, Charleston, and other cities in SC.
But are they legal? Did they finally come up with a foolproof way to circumvent the marijuana laws and make marijuana legal without the legislature’s help?
Although many websites are proclaiming that delta-8 gummies and other products containing delta-8 THC are perfectly legal and you will not be prosecuted for buying, selling, possessing, or using it, much of this is wishful thinking, and the law – federal and state – is not so clear.
What is Delta-8 Marijuana?
Let’s look at some marijuana-related terms and what they mean:
Marijuana: is a plant. People have smoked it for thousands of years for its calming effects.
Hemp: is a marijuana plant. Today, when people refer to hemp, they are usually referring to a strain of marijuana that has been bred for an extremely low THC content. The plant is then harvested and processed for 1) products made from the stalks and seeds of the plant and 2) CBD content.
CBD: is short for cannabidiol, an active ingredient in marijuana that has become quite popular in recent years because it reportedly has beneficial effects but does not get a person high in the same way that THC does and because it is legal under state and federal law.
THC: is short for tetrahydrocannabinol, the primary psychoactive ingredient in marijuana that causes the effects that are felt when marijuana is smoked or ingested.
Delta-9 THC: is the specific variant of THC that is found in marijuana and that, until recently, was the only commonly known form of THC found in marijuana.
Delta-8 THC: also called D8 THC or dronabinol, is a variant of Delta-9 THC that reportedly has effects similar to Delta-9 THC and is currently being sold in smokable form, as oil that can be vaped, and in edibles like Delta-8 gummies across the country, including in SC.
Is Delta-8 Marijuana Legal Under Federal Law?
Maybe?
Although some sources claim that Delta-8 products are legal under federal law, and other sources claim that Delta-8 is not legal under federal law, it is very much an open question right now.
It’s legal: The 2018 Farm Bill legalized hemp production, defining 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 percent on a dry weight basis.
Hemp is legal. Hemp is any marijuana plant that contains less than .3 percent delta-9 THC. Delta-8 THC is not delta-9 THC, therefore delta-8 THC is legal under federal law.
It’s not legal: As some sources point out, “synthetically derived” cannabinoids may not be legal under federal law. Because delta-8 is a “minor cannabinoid,” and most plants contain less than 1%, producers change CBD into delta-8 THC using a chemical process before selling it, and the DEA will most likely consider that “synthetically derived:”
The DEA issued an Interim Final Rule (IFR) in mid-2020 addressing the legal status of synthetically-derived cannabinoids. What does “synthetically derived” have to do with delta-8? Well, delta-8 is a minor cannabinoid, meaning hemp plants only carry up to 1%.
This percentage isn’t enough to create potent products, so producers chemically derive delta-8 from CBD via a structural isomerization process under laboratory conditions. This process takes CBD, alters its molecular structure with chemicals, and converts it into delta-8.
If you are concerned about the legality of possessing or using delta-8 gummies or other delta-8 products, however, you may be more concerned about your local state laws than federal law. Is delta-8 legal in SC?
Is Delta-8 Marijuana Legal Under SC Law?
Again, maybe?
SC law enforcement officials, including SCs attorney general and our SLED chief, think that it is not legal:
“Our office agrees with SLED’s essential analysis that the Hemp Farming Act did not legalize THC except as defined in lawful hemp,” [assistant attorney general] Jones said in a letter to [SLED Chief] Keel last week. “If the General Assembly intended to undertake legalization of THC on the scale that the industry posits, they would have done so expressly and unambiguously.”
Instead, Jones said the legislative scheme of South Carolina’s 2019 Hemp Farming Act was much narrower: to create a legal framework for the licensed regulated production of industrial hemp as defined (cannabis containing less than 0.3% delta-9 THC). Other THC variants, such as delta-8, that exceed 0.3% on a dry-weight basis do not fit that definition and are prohibited under state law, the opinion states.
Despite many sources claiming that delta-8 gummies and delta-8 products are legal under both federal and SC state law, it is not that clear-cut.
The 2019 SC Hemp Farming Act tracks the federal Farm Bill’s definition of hemp as containing a “delta-9 THC concentration of not more than 0.3 percent on a dry weight basis.” It does not reference delta-8 THC at all.
SC Code § 44-53-190(D)(11) and (18) make marijuana and THC Schedule I controlled substances in SC. THC is identified only as tetrahydrocannabinol, without reference to whether the THC is delta-8, 9, or 10.
CBD is legal in SC because 44-53-110 (27)(b) specifically excludes 1) oil or cake made from the seeds of the marijuana plant, including cannabidiol (CBD) derived from the seeds of the marijuana plant; and 2) any other compound, manufacture, salt, derivatives, mixture, or preparation of the mature stalks (except the resin extracted therefrom), including cannabidiol derived from mature stalks.
There is no provision in SC law specifically excluding delta-8 THC from the definition of marijuana or THC, however, and the SC Hemp Farming Act does not authorize the production, sale, or possession of delta-8 THC.
What is the answer?
Maybe delta-8 THC is legal in SC, but law enforcement officials do not think so, and the courts have not weighed in on the debate yet. In the meantime, until the courts have heard these cases or until the legislature clarifies the legality of delta-8 THC, you should assume that any type of THC is illegal in our state unless it is industrial hemp with a THC content of .3% or less.
Questions About Delta-8 Marijuana?
If you have been charged with drug possession, drug distribution, or drug trafficking in SC, including the sale or possession of delta-8 gummies, delta-8 smokables, or other delta-8 THC products, we want to help you.
You can schedule a free consultation to discuss the facts of your case with a Myrtle Beach drug defense lawyer at Coastal Law, LLC, by calling (843) 488-5000 or filling out our online form.
