What is Delta 8 and is it Illegal?

July 23, 2022 by Anthony Riccio

Cannabis legalization has swept the nation in the last decade. As of 2022, more states allow the use of recreational or medicinal marijuana than not. This phenomenon allows consumers to engage in cannabis safely, legally, and at a reasonable cost. However, the growing trend in legalization has opened up further questions regarding home-grow, limits on purchasing, markets for new cannabis technology, and how cannabis products are created and sold to the public. One particular issue is the legality of a synthesized substance of cannabis, Delta 8.

What is Delta-8 THC?

Per the U.S. Food and Drug Administration’s (FDA) definition, Delta-8 tetrahydrocannabinol (“Delta-8 THC”) is a substance with psychoactive properties found in the cannabis plant. Delta-8 THC is rarely found in large, naturally harvestable quantities in the chemical breakdown of most common cannabis plants. Instead, manufacturers of cannabis products can synthesize Delta-8 THC from cannabis plants. The delta-8 extract is an ingredient used to create cannabidiol (CBD) products.

Why is Delta-8 THC Significant?  

As more and more Americans become introduced to cannabis products, they quickly realize the cannabis industry is not just growing and selling “weed” or “pot” for consumers to smoke flowers outright. Instead, a whole industry has developed to create safe and easy-to-used cannabis products by manufacturing cannabis leaves for smoking, vaporizing oil, hair- and skin-care products, and edibles like candy, chocolate, pastries, and drinks.

Delta-8 THC is commonly referred to as a nicer version of other derivative chemicals from cannabis plants. Unlike Delta-9 THC, which is highly potent, causing cannabis’ signature psychotropic effects, Delta-8 THC is far less potent and delivers a lighter “high” for users. As cannabis continues to grow in popularity, undoubtedly paving the way for more legalization and decriminalization, some in the cannabis community believe Delta-8 THC can benefit from its diminished psychotropic values.

Instead of supplying consumers with a high that can cause an altered state, including short-term memory loss, feeling loss, and difficulty concentrating, Delta-8 THC may be more beneficial to those using it for medicinal purposes. While some users consume cannabis for recreational purposes, others use cannabis to alleviate pain and address certain physical and mental illnesses. Medicinal users may prefer less potent cannabis products to treat ailments instead of providing recreational stimulus.

Massachusetts Cannabis Laws

As of December 15, 2016, the state of Massachusetts has allowed the lawful sale of cannabis for recreational use. Although cannabis has been legal for nearly six years, that does not mean anyone can have unfettered access to unlimited supplies of cannabis. 

Recreational Cannabis

Under Massachusetts law, cannabis may only be consumed on residential property with the owner’s full consent. However, Massachusetts has yet to establish robust rules for the consumption of cannabis in public spaces or other forms of privately-owned property.

Cannabis can only be consumed by those that are 21 years or older. Adults may carry up to 28 grams of cannabis flower in public, including five grams of concentrated THC products. Furthermore, adults may possess up to 10 oz. of cannabis or up to five grams of concentrated THC products in a residence. Adult-use consumers may grow up to six (6) cannabis plants in their home or twelve (12) cannabis for two or more adults located in the home.

Public consumption of cannabis, including on sidewalks, streets, parks, government buildings, workplaces, and restaurants, can result in a $100 fine per incident. Massachusetts also enforces a strict “open container” law, similar to alcohol, where an open container of cannabis product while a driver operates a motor vehicle can result in a $500 fine. To avoid a violation, drivers may place the open cannabis container in a locked glove box or trunk.

Medicinal Cannabis

Massachusetts has specific carve-outs for consumers with a valid medical marijuana card. For example, eligibility to obtain a medical marijuana card starts at 18 years old—instead of 21 years old for recreational cannabis. Further, medical cannabis cardholders can possess up to 1.8 ounces (approximately 51 grams) of concentrated cannabis products.

Medical cardholders may grow up to twelve cannabis plants in their home. Additionally, qualifying cardholders can apply for a special-use Hardship Qualification designation to grow up to a 60-day supply of cannabis for their medical needs.

To qualify for a medical cannabis license, a patient must be experiencing a “debilitating medical condition,” which includes some of the following diseases:

  • ALS.
  • Cancer.
  • Crohn’s Disease.
  • Glaucoma.
  • HIV/Aids.
  • Hepatitis.
  • Multiple Sclerosis.
  • Parkinson’s Disease.

Delta-8 THC Legal Status

Massachusetts laws regarding the cultivation, distribution, and consumption of Delta-8 THC are unclear. For starters, cannabis derivatives are not technically illegal under state law. However, the Massachusetts Department of Agriculture (MDA) has weighed in on the Delta-8 THC’s current status as a substance in the state.

Although the Massachusetts cannabis law does not explicitly mention any restriction on the use of Delta-8 THC, MDA has stated, “[w]hile the Farm Bill [cannabis law] did remove hemp [cannabis] from the Controlled Substances Act, it did not impact the control status of synthetically derived cannabinoids. Thus delta-8 THC remains a controlled substance, regardless of the source.” Therefore, MDA concluded that processing or selling Delta-8 THC products in Massachusetts is prohibited.

Nonetheless, while products with Delta-8 THC as an indigent are perfectly legal for sale or consumption in Massachusetts, selling or consuming strictly synthetically derived cannabinoid products, like Delta-8 THC, may be prohibited.    

FDA’s Position on Delta-8 THC

Currently, the FDA is closely monitoring Delta-8 THC in the marketplace. Specifically, the FDA has cited concerns with baseless medical claims made by manufacturers and sellers of Delta-8 THC products that their products have therapeutic values to alleviate certain conditions and illnesses. However, to make such claims requires FDA approval, which has not been completed for virtually all Delta-8 THC products.

Furthermore, regardless of claims of “nicer” or “less-potent” highs caused by Delta-8 THC consumption, the substance still has psychoactive and intoxicating properties for users. Also, because Delta-8 THC does not naturally occur in sufficient quantities in most cannabis plants, extracting concentrated levels of the substances requires a synthetization process using chemicals that could potentially harm consumers.  

Contact Us

If you or a loved one has recently been charged with a cannabis-related crime, including possession, cultivation, or distribution related to products with Delta-8 THC ingredients, contact Ricco Law, LLC today for a free case evaluation.