Is a Delta-8 ban coming?

Many users have hailed Delta-8 THC as being a potential legal marijuana substitute and being capable of potentially helping others deal with physical or mental problems. While not as potent as Delta-9 THC, Delta-8 THC has been noted to have the ability to potentially give people certain intoxicating benefits and provide a different experience to traditional marijuana. Because it exists in a legal grey area – all marijuana bans specifically use Delta 9 as their definition – Delta 8 is being sold in stores across the country.

There’s no doubt about it: A legal crackdown exists on the substance and one that may soon be nationwide.

Twenty States Ban

At the moment, 20 states have banned Delta-8 THC. These states have done so by explicitly citing the similarities Delta-8 has to marijuana and noting that the compound has intoxicating and potentially dangerous effects.

Don’t think that this is an ideological divide: The states run the gamut between liberal and conservative, with states as right-leaning as Texas and left-leaning as New York banning the substance. Other states continue to change their Delta-8 THC policy as well, even if that doesn’t result in an outright ban.

However, legal bans have also been challenged in court. For example, in May 2022, a Federal Court in California found that only the federal government had the power to ban Delta-8 THC. They specifically applied this to the recent 2018 Farm Bill, which potentially legalized Delta-8. In particular, the court decision found that the decision to legalize Delta-8 may have been an error, but it was an error that the federal government had to rectify – not the states.

This decision has been appealed, meaning that it has not yet fully gone into effect. If it were, it could have major impacts across the country, particularly in the twenty states that have banned Delta-8 THC products. Of course, that ban could become nationwide if the Food & Drug Administration, or Congress, takes broader action.

And they may do just that.

Federal Government Response

Here’s where things get interesting.

It may be that only the federal government can ban the use of Delta-8 THC, but that means that one of two things would have to happen:

  • Congress would have to pass a law re-banning Delta-8 THC, a difficult prospect to imagine.
  • The Food & Drug Administration would have to appropriate legal action to ban Delta-8 THC.

At the moment, the FDA has issued warning letters to companies that have violated other statutes or regulations in marketing their Delta-8 products. This includes companies that have placed Delta-8 in food, branded it as a medical cure-all, or marketed it as a drug. The FDA is quick to point out that no approved drug contains Delta-8 THC (which is not the case for other cannabis-based drugs, like CBD) and has yet to evaluate the drug for its potential medical benefits.

This action begs the question: Is the FDA moving to ban Delta-8 in the future?

As of yet, no. However, that doesn’t mean that the entire federal government is taking no action. The Centers for Disease Control have issued warnings about the health challenges and risks posed by the substance. Data released shows that most of the emergency calls related to Delta-8 were caused by either an overdose or kids taking the substance.

Perhaps one of the greatest pieces of information to note is this: Many Delta-8 vendors would appreciate regulation. There’s a way array of Delta-8 vendors. Some are highly reputable, ensure that their products are safe, label and market their products appropriately, and fight to ensure their customers know exactly what they are taking when they use Delta-8. Some vendors are far less scrupulous and only interested in the quick buck.

The latter group is highly damaging to the former. And this creates real problems for individuals who want to sell Delta-8 but do so in a responsible way, as many vendors do. As such, it follows that these people would welcome regulation since they already adhere to appropriate standards. Indeed, some Delta-8 vendors are advocating for reasonable regulations that would crack down on bad vendors and leave good one’s space to operate.

What’s The Takeaway?

A legal mess.

At the moment, the bans on Delta-8 THC stand in twenty states, while another thirty states have no such bans. This is despite anecdotal reports that Delta-8 can help with a variety of issues. There is no federal ban (yet), but that may change in the future. As such, it is incumbent upon you to confirm whether or not you are legally able to use Delta 8 THC in your location before using it. Failure to do so could land you in hot water.

LA Weekly