Is Hemp-Derived Delta-9 THC Legal?

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Hemp derived Delta-9 THC legal, Earthy Select logo

If you want to know if hemp derived Delta-9 THC is legal, keep reading. Good news, the short answer is yes, it is, but there’s more to it.

Delta-9 tetrahydrocannabinol (THC) occurs naturally in the cannabis plant, and despite being a federally controlled substance on the Schedule 1 list, 48.2 million Americans (18% of the country) used marijuana in 2019 [1]. Many states sanction medical or adult recreational use of marijuana despite a national prohibition, but others do not. 

Until recently, Delta-9 THC was only available from the controlled substance version of cannabis, and only legally accessible in marijuana-friendly states. Thanks to the Farm Bill, hemp derived cannabinoids including Delta-8, Delta-9, and Delta-10 THC are now federally-compliant and more accessible to more people. This article will discuss the details of what brought this positive change to the cannabis landscape.

To learn about Delta-8, read Is Delta-8 Legal in Your State? 

To learn more about Delta-9, read our Guide to Hemp-Derived Delta-9 THC

Defining legal

In the legal world, a lot comes down to how words are defined. Cannabis, hemp, marijuana, THC…these words may conjure meanings for you. But what actually carries weight in terms of administration of laws, is how they are officially defined in regulations and law books. 

Cannabis is on the Drug Enforcement Agency’s (DEA) list of Schedule 1 drugs, counterintuitively this puts marijuana in the same category as heroin and lysergic acid diethylamide (LSD). It’s counterintuitive to people who appreciate cannabis because the DEA states that, “substances in this schedule have no currently accepted medical use in the United States, a lack of accepted safety for use under medical supervision, and a high potential for abuse [2].” This is an arguable position at best. 

Is cannabis on the wrong list? 

There is actually myriad evidence of marijuana being used for therapeutic and medical use, which would seem to counter the DEA’s position. The National Organization for the Reform of Marijuana Laws (NORML) says “modern research suggests that cannabis is a valuable aid in the treatment of a wide range of clinical applications [3].” 

In fact, as of this writing, 41 U.S. states and territories have medical marijuana laws [3]. In these states, medical professionals may recommend cannabis for various health indications. For example, in California a medical cannabis patient may be recommended marijuana by their primary care physician to help manage medical conditions including, acquired immune deficiency syndrome (AIDS), anorexia, arthritis, cachexia (wasting syndrome), cancer, chronic pain, glaucoma, migraine, severe nausea, persistent muscle spasms, and seizures [4]. 17 states have even legalized small amounts of marijuana for adult recreational use [5]. 

Remember that the state laws of California, for instance, do not change the national designation of cannabis as illegal in that state and all states, but for now the situation remains stable. The federal and state rules may seemingly be at odds, but people can currently work within various legal limitations and enjoy the ability to use marijuana to the extent of their local legislation. 

Hemp saves 

We know that people may use marijuana, the federally controlled substance, depending on their state laws. If your state doesn’t yet allow medical or adult use, there is another way. 

Hemp and marijuana both come from the same plant, Cannabis, which naturally contains Delta-9 THC, the single cannabinoid that is under federal-control, and the main psychoactive substance in cannabis. The amount of Delta-9 THC existent in the plant material per dry weight determines the federal-compliance of the final product. The 2014 Farm Bill defined the legal limit at .3% so cannabis with less than that is considered legal hemp. The 2018 Farm Bill expanded on this, making it clear to legal experts that all other plant material and substances derived from legally-defined hemp are also federally-compliant [6]. 

If your state doesn’t yet allow medical or adult use, there is another way. 

With this allowance, cannabis innovators quickly began exploring how to capture and utilize cannabinoids including Delta-9 THC from this newly-legal resource. There are over a hundred identified cannabinoids in cannabis, some with psychoactive effects, some without [7]. These interact with the human endocannabinoid system and play a role in regulating multiple processes and functions in the body [8]. 

Delta-9 THC is the main psychoactive substance in cannabis and may come from hemp or marijuana – remember they are the same plant and the greater or less than.3% threshold is what makes the difference. A cannabinoid extracted or converted from marijuana is not federally-compliant, while the same cannabinoid made from hemp is, provided that it is not synthetically-derived [9]. However, the definition of synthetic has not been satisfactorily defined by authorities [6]. 

History repeating

Believe it or not, it was once legal to grow, sell, and use cannabis in the United States, and it was OK to use morphine (an opiate) and cocaine too. They were all used as ingredients in patent medicines, and recreationally, in the late 1800s [10]. In 1914, Congress passed the Harrison Act which banned opiates and cocaine [11]. Drug prohibition was in the zeitgeist, and,  when it was ratified in 1919,  the 18th Amendment to the U.S. Constitution even outlawed alcohol [12]. 

The 21st Amendment repealed the alcohol prohibition in 1933, but in 1937 the Marihuana Tax Act passed, led by the anti-marijuana Federal Bureau of Narcotics Commissioner, Harry Anslinger [13]. The Act regulated the importation, cultivation, possession and/or distribution of marijuana by imposing paperwork and tax payments on marijuana transactions. This resulted in search and seizures, forfeiture, fines and imprisonment for those not following the law [13]. 

Industrial hemp was affected along with medicinal and adult marijuana use as the Act made hemp production less economical, even as interest in the crop was growing. This could have been simple collateral damage, but some think it may have been by design. Industrialists of the era whose profits would be hurt by hemp’s success are suspected of being behind Anslinger’s cause, ie, that Randolph Hearst was protecting his timber investment, and Andrew Mellon was protecting nylon [14,15]. Either way, our collective scientific knowledge base was definitely collateral damage. Disappearance of almost all scientific and medical research into cannabis was an additional unfortunate effect of the 1937 legislation [13]. 

War on Drugs

In 1970, President Nixon signed the Controlled Substances Act (CSA) into law. The Act regulates the manufacture, importation, possession, use and distribution of certain narcotics, stimulants, depressants, hallucinogens, anabolic steroids and other chemicals [16]. It was the CSA that placed marijuana on the Schedule 1 list of controlled substances, effectively outlawing the resource for health and industrial use [16]. The CSA banned cannabis of any kind. 

The legal history is included to show what cannabis proponents are up against as they attempt to move society forward in its attitudes toward cannabis and hemp derived products.

Farm Bills

So what did the Farm Bills do exactly? The 2014 Farm Bill allowed research into hemp, and cannabis production for such research, and the 2018 Bill expanded quite a bit. It allows the sale, transport, and possession of all hemp and hemp derived products, including transferring across state lines for commercial or other purposes [17]. 

The way the Bills define hemp is the reason we have federally compliant hemp derived cannabinoids like cannabidiol (CBD), Delta-8, Delta-9 and Delta-10 THC. Hemp is defined 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 [18].”

If cannabinoids are made from hemp and stay below the allowed limit of Delta-9 THC, they are federally compliant.

So as long as cannabinoids are made from hemp and stay below the allowed limit of Delta-9 THC, they are federally compliant. Products being sold in states without medicinal or adult use laws must be hemp-derived and contain less than .3% Delta-9 THC by dry weight, otherwise they are considered a controlled substance and illegal. 

For example, the Earthy Select Delta-9 Sativa gummy is a 5 gram gummy which contains 10mg (or .001g) of hemp-derived Delta-9 THC per gummy. Doing the math, .001mg divided by 500mg equals .02%, very clearly below the .3% per dry weight that is allowed by law. 

Less is more  

Does less than .3% Delta-9 THC do anything? The answer is yes but it’s more complicated than that. 

Products with THC, even at low dosages, have the potential to produce psychoactive and therapeutic effects. The strength of the effects on a particular person will be different depending on a few things: the dosage level, the person’s body weight, what food or other substances are in their system, personal body chemistry, and their experience level or tolerance of THC.

Generally speaking, it is recommended that a person start with a low dose and gradually increase it until reaching satisfactory results. Consult your healthcare provider with specific questions about using any therapeutic products. 

A little more freedom

Today it is easier to benefit from the cannabis plant than in past years, and millions of Americans are gratefully doing so, for millions of reasons. For many of them, the right to do so comes down to the Farm Bills, and to innovative producers making hemp-derived Delta-9 THC available in products. Remember in the U.S. marijuana is still illegal on a national level, and using it can mean seizure of property, fines, or arrest. Hemp-derived THC is legal and offers a great alternative while our laws continue to change. 


Disclaimer – Information is provided for educational purposes. It does not, and is not intended to, constitute legal advice or medical advice. We attempt to be accurate and up to date but the legality of cannabinoids and the science of cannabis is evolving. The author is neither a lawyer or a legal expert, nor a doctor or medical expert. You should check with your local authorities and medical providers before buying or using any products.

References

  1. https://www.cdc.gov/marijuana/data-statistics.htm
  2. https://www.deadiversion.usdoj.gov/schedules/
  3. https://norml.org/laws/medical-laws/
  4. https://cannabis.ca.gov/consumers/medicinal-cannabis/#eligible-medical-conditions
  5. https://www.pewresearch.org/fact-tank/2021/04/26/facts-about-marijuana/
  6. https://thehia.org/hia-position-statement-on-delta-8-and-hemp-cannabinoids/
  7. https://en.wikipedia.org/wiki/Cannabidiol
  8. https://www.healthline.com/health/endocannabinoid-system
  9. https://www.deadiversion.usdoj.gov/fed_regs/rules/2020/fr0821.htm
  10. https://www.aclu.org/other/against-drug-prohibition
  11. https://law.stanford.edu/2014/12/19/the-drug-war-at-100/
  12. https://en.wikipedia.org/wiki/Eighteenth_Amendment_to_the_United_States_Constitution
  13. https://www.cbp.gov/about/history/did-you-know/marijuana
  14. https://rowman.com/ISBN/9780761828907/NAFTA-and-Neocolonialism-Comparative-Criminal-Human-and-Social-Justice
  15. https://books.google.com/books?id=4ozF1Yg-c4MC&pg=PA129#v=onepage&q&f=false
  16. https://www.drugs.com/csa-schedule.html
  17. https://www.brookings.edu/blog/fixgov/2018/12/14/the-farm-bill-hemp-and-cbd-explainer/
  18. https://www.congress.gov/bill/115th-congress/house-bill/2/text

 

Frequently Asked Questions

 

Does Delta-9 from hemp get you high?

People may feel high after using any THC products. Products with THC, even at low dosages, have the potential to produce psychoactive and therapeutic effects. The strength of the effects on a particular person will be different depending on a few things: dosage level, body weight, food or other substances in the system, and experience/tolerance level of THC, and personal body chemistry.

What is a COA?

A certificate of analysis (COA) is a document attesting to a product’s laboratory analysis for cannabinoids and in some cases adulterants, heavy metals and pesticides.It is a useful tool for cannabis producers and customers to ensure quality and trust.

Is it legal to send Delta-9 THC from hemp in the mail? 

Yes, the Farm Bill permits this. Though products are federally-compliant because they have less than .3% Delta-9 THC per dry weight, individual states may have their own regulations about purchasing or using hemp-based THC products, and these are subject to change. You should check your state and local rules before ordering.

What are the effects of hemp-derived Delta-9 THC?

When using Delta-8, Delta-9, and Delta-10 THC products, users report feelings of relaxation, euphoria, creativity, focus and pleasure. Some people like to compare the effects to those of traditional adult-use cannabis products. 

The strength of the effects on a particular person will be different depending on a few things: dosage level, body weight, food or other substances in the system, and experience/tolerance level of THC, and personal body chemistry.

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