Yes. It is possible to get arrested for selling Delta-8 products, even though there may be a good argument that the product you are selling is lawful. The problem is that some law enforcement agencies are under the impression that any edible containing Delta-8 is not protected by the hemp exemption under the 2018 Farm Bill. That’s why it’s critically important to consult an attorney with knowledge of Delta-8, hemp production, and related federal and state laws to advise you on the legality of selling these products.
Unfortunately, the legal status of Delta-8 remains in dispute, with advocates in the hemp industry arguing that Delta-8 is a legal derivative of hemp as defined under the 2018 Farm Bill. Meanwhile, the DEA and other law enforcement agencies argue that Delta-8 does not meet the law’s definition of “hemp” because it has been synthesized.
Since the federal government and several states have legalized hemp, products containing CBD and other cannabinoids derived from hemp plants have become very popular. Recently, an increasing number of businesses have begun selling products containing Delta-8, a hemp extract that has become almost as popular as CBD and that many consider a legal alternative to marijuana.
As the market for Delta-8 heats up, law enforcement agencies have begun arresting individuals and shutting down businesses involved in the production or sale of Delta-8 products, despite the fact that the 2018 Farm Bill seems to legalize products with Delta-8. These arrests have come without warning or notice to the business that Delta-8 is illegal.
Delta-8, short for Delta-8-Tetrahydrocannabinol, is a type of “cannabinoid” found in marijuana plants that is similar to Delta-9-Terahydrocannabinol (simply referred to as THC). Unlike CBD, Delta-8 produces psychoactive effects in consumers that is similar to THC, though substantially weaker, and this has made Delta-8 popular even with people who do not like or approve of marijuana generally.
While CBD, THC, and Delta-8 are all cannabinoids that come from the marijuana plant, they are treated differently under federal and state law based on how they are processed. The Delta-8 products sold across the U.S. are usually derived or extracted from hemp plants, which are a variety of the marijuana plant and has a very low percentage of THC.
Like CBD, Delta-8 is found in very small amounts in hemp. As a result, hemp plants must be processed in large quantities to extract CBD and Delta-8. These Delta-8 extractions are then used to create oils, edibles, medical creams, and other products. Dried hemp is often infused with Delta-8 and sold for smoking.
While Delta-8 is a legal extract or derivative of hemp as defined under the 2018 Farm Bill and related state laws, the DEA and other law enforcement agencies have begun targeting businesses and individuals that sell Delta-8 products under their apparent belief that the Farm Bill did not legalize every form of hemp extracts or derivatives.
When Congress passed the 2018 Farm Bill and removed hemp from the definition of marijuana under the Controlled Substances Act, it redefined “hemp” as the marijuana plant or “any part of such plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers” as long as the plant or its derivatives have less than 0.3% of THC (specifically, Delta-9-THC).
Under this definition, it appears that Delta-8 is clearly a derivative or extract of hemp, and therefore legal. At the same time, however, the DEA has Delta-8 listed as a schedule I controlled substance. In an attempt to clarify the scope of the 2018 Farm Bill’s legalization of hemp and hemp products, the DEA issued an interim final rule in August 2020. The rule does not mention Delta-8 specifically but states that the 2018 Farm Bill did not legalize “synthetically derived tetrahydrocannabinols” and that all “synthetically derived tetrahydrocannabinols remain schedule I controlled substances.”
Far from clarifying the legal status of Delta-8, however, the DEA’s new rule has only made the law more confusing. The 2018 Farm Bill’s language is broad and allows “all derivates, extracts, cannabinoids, isomers, acids, salts, and salts of isomers” of hemp. There is no mention or exception for substances that are “synthetically derived.” Where there is a conflict in definitions, a law passed by Congress like the 2018 Farm Bill trumps the DEA’s list of illegal drugs.
Additionally, and unlike synthetic cannabis such as Spice or K2, which have long been outlawed, Delta-8 is not an inorganic man-made substance. Delta-8 is naturally derived from CBD and hemp. Under the plain language of the 2018 Farm Bill, that makes it legal as long as the Delta-8 was derived from a plant that had less than 0.3% of Delta-9 THC.
Unfortunately, the DEA’s position means that business owners risk getting arrested for extracting Delta-8 or selling Delta-8 products even though they genuinely believe they are complying with the law and attempting to do so. That’s precisely why it’s important for these businesses and their owners to study the law and be prepared if law enforcement targets them for arrest.
If you are arrested or notified that you are a target of an investigation involving Delta-8 products, the first thing you should do is call an experienced criminal defense attorney to learn what rights are and how to fight back.
In order to prosecute a business or individual for selling or possessing Delta-8 products, the government has to prove that you knowingly possessed or distributed a schedule I controlled substance, specifically THC or marijuana. In some cases, an experienced attorney can file motions before trial to try to get the charges dismissed by arguing that Delta-8 is not a controlled substance.
In other cases involving Delta-8, the element of “knowledge” will be critical because the 2018 Farm Bill and related state laws seem clear in allowing individuals and businesses to farm hemp, create extracts and isomers from it, and sell those to customers. At trial, the prosecutor would have to prove that you possessed or distributed Delta-8 knowing it was contraband. An experienced attorney can prepare a strong trial defense based on the accused person’s lack of knowledge and the inconsistent laws regarding Delta-8 and hemp extracts.
The “lack of knowledge” defense is especially relevant where a business owner buys Delta-8 from a licensed vendor and is not involved in the extraction process. Businesses and individuals involved in extracting Delta-8 from hemp and CBD have a little more to worry about because the process of extracting Delta-8 creates a situation where the hemp material being processed temporarily contains more than 0.3% Delta-9-THC.
Individuals and business involved in Delta-8 extraction still have a valid defense if they are arrested, however, since the process of extracting CBD or Delta-8 from a marijuana plant inevitably results in the plant materials containing more than 0.3% Delta-9-THC for a short period of time during processing. By allowing extracts of hemp in the 2018 Farm Bill, Congress implicitly allowed the processing of hemp materials that have over 0.3% Delta-9-THC. Otherwise, extraction would be impractical to the point of defeating Congress’s intent to make hemp extracts legal.
Finally, to the extent that Delta-8 can be considered illegal under federal or state law, which we strongly contest, an experienced attorney can also help you fight the charges by invoking the rule of lenity. The rule of lenity is based on an individual’s right to due process, which is protected under the U.S. Constitution.
The rule of lenity holds that a person cannot be convicted of the crime if the law did not clearly provide notice to the public that certain actions or conduct is illegal. Here, that means arguing that the broad language of the 2018 Farm Bill and the DEA’s rule failed to alert the public that Delta-8 is illegal. As such, prosecuting individuals or businesses under these ambiguous laws would violate their rights to process because they could not reasonably have known their conduct was illegal. A quick Google search of “is Delta 8 legal” reveals how confusing the legal landscape is regarding Delta-8.
The controversy surrounding the legal status of Delta-8 recently hit here in Georgia. Late last week, local law enforcement in the metro-Atlanta area executed search warrants at several stores and a warehouse belonging to our client, a small business owner who operates a chain of stores selling nicotine “e-cigarettes” and CBD products. The police seized several products that allegedly contain Delta-8.
Despite the fact that Delta-8 products are legally sold in a majority of states across the country, our client, his family members, and two of his employees have been charged with felony possession of a Schedule I controlled substance with intent to distribute. These are the same charges that prosecutors bring against street-level drug dealers. Our client received absolutely no notice or warning from law enforcement or prosecutors that they now consider Delta-8 products illegal.
Unfortunately, it is not uncommon for the government to implement a brand new policy via criminal prosecutions, and our client’s arrest suggests that local, state, and federal law enforcement wants to “send a message” to individuals and businesses that sell Delta-8 products. While an email or public notice would likely be just as effective, more arrests may be coming.
Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of our firm’s “The Federal Docket” and a contributor to Mercer Law Review’s Annual Survey in the areas of federal law. Tom was named a “Top 40 Under 40” lawyer by The National Trial Lawyers, and is a recognized expert in federal sentencing law. He graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom’s reviews on AVVO. Follow Tom on Linkedin.