News Roundup – North Carolina Criminal LawNorth Carolina Criminal Law
Criminal Law

Delta-8 THC (and beyond) – North Carolina Criminal LawNorth Carolina Criminal Law

Delta-8 THC (and beyond) – North Carolina Criminal LawNorth Carolina Criminal Law

Cannabis news abounds: Virginia legalized recreational marijuana for adults 21 and up this year; our General Assembly has been considering a medicinal marijuana bill (S.B. 711); the Court of Appeals recently acknowledged (but did not decide) that precedent on the odor of marijuana as probable cause and on visual identification of the substance “may need to be re-examined” in light of legal hemp. State v. Parker, ___ N.C. App. ___, 860 S.E.2d 21, 29 (2021) (more on those issues here). I will write about the still-evolving issues with marijuana prosecutions in the state again soon. Today, though, I want to focus delta-8 THC. What is it? Is it legal? If so, how? Turns out the first question is simpler than the rest.

Delta-8 THC. Delta-8 tetrahydrocannabinol (“delta-8 THC”) is an isomer of the more (in)famous cannabinoid, delta-9 THC. The two chemicals are closely related and are distinguished only by a single chemical bond, according to Wikipedia and other sources. The compound is naturally present in small quantities in hemp and marijuana. Once the cannabinoid CBD (cannabidiol) is extracted from hemp, delta-8 THC can be extracted from the CBD with relative ease. Although it does not seem to be as popular currently, a similar product is delta-10 THC, another isomer of delta-9 THC. Unlike CBD, delta-8 and delta-10 THC have some impairing effect, but they are apparently less potent than normal marijuana.

Proponents claim that delta-8 causes a more relaxed and calmer high than marijuana. Anecdotally, users have described it to me as either a weaker version of marijuana or altogether indistinguishable from normal marijuana. Presumably, its effects depend on the dose and the concentration of the product (among other factors, such as tolerance, purity, and metabolism). The substance is widely available in hemp shops and other retailers in North Carolina and other states where marijuana is otherwise illegal (as well as in marijuana legal states). Like other hemp extract products, delta-8 can be found in the form of edibles, vape cartridges, tinctures, sprayed on smokable hemp, and other forms. Delta-8 THC has become an extremely popular product for the hemp industry.

Delta-8 and Federal Law. Hemp is defined under federal law as any part of the cannabis plant with no more than 0.3 % delta-9 THC and is excluded from the definition of marijuana. See 7 U.S.C. 1639o(1); 21 U.S.C. 802(16). The federal definition explicitly includes “all derivatives, extracts, cannabinoids, isomers, salts, and salts of isomers . . .” Any isomer or derivative of hemp that stays under the delta-9 THC limit is therefore considered hemp and not marijuana under federal law. Because delta-8 THC and delta-10 THC are made from legal hemp and do not exceed the delta-9 THC limit, the products are legal. Simple, right?

Yes and no. Federal and state law—predating the legalization of hemp—ban “synthetic” THC, as well as analogue controlled substances (drugs designed and sold to imitate the effects of controlled substances but that are not necessarily named controlled substances themselves). The argument for treating delta-8 THC as synthetic THC seems to be that the production of delta-8 requires a process of synthesis—turning hemp to CBD and then to delta-8, leaving you with a “synthetic” THC product (more on this in a moment). The argument for its treatment as an analogue is that delta-8 THC is designed to mimic the effects of delta-9 THC and is meant for human consumption. There has been litigation between hemp industry groups and the Drug Enforcement Agency regarding the agency’s interpretation of certain hemp issues, which could affect delta-8’s status on the federal level.

I do not have the space to discuss all the potential issues here (including the analogue controlled substance issue), but for more on that and a deep dive into delta-8 and federal law generally, I encourage readers to check out this position paper on the subject by The Kight Law Firm. It is obviously advocacy and not controlling, but nonetheless informative. For now, it seems that the simpler analysis—the product was sourced from hemp and is therefore legal—is the prevailing view, in practice if not in theory.

What about NC Law? Unlike the federal definition of hemp, the North Carolina definition does not include the federal “derivatives, extracts, isomers” language. G.S. 106-568.51(7). How significant is that omission? In practice, not very. Hemp products, including extract and derivative products of all kinds, are available Manteo to Murphy. I have yet to hear of a single charge or prosecution for possession of hemp-derived delta-8 THC (if you’ve seen one, please let me know). In theory, though, the analysis is more complicated and raises a multitude of questions. How could delta-8 be treated under state law?

Not Isolated THC. First, the easy stuff. North Carolina imposes felony liability for any amount of “tetrahydrocannabinols isolated from the resin of marijuana.” G.S. 90-95(d)(4). May hemp-derived delta-8 THC (and other similar isomers and derivatives) be considered an “isolated tetrahydrocannabinol” for purpose of this subsection? My answer is no. Whatever “THC isolated from the resin of marijuana” might be, a hemp-derived product is simply not made from the resin of marijuana. North Carolina law has long distinguished between hemp and marijuana, and both are specifically defined to exclude one from the other. See G.S. 90-87(16) and G.S. 106-568.51(7). When delta-8 THC is derived from hemp and not marijuana, it logically cannot be considered to have been made from the “resin of marijuana” and therefore does not qualify as “isolated” THC under this provision.

Synthetic THC. Back to synthetic THC. G.S. 90-95(d)(4) also imposes felony liability for any amount of “synthetic tetrahydrocannabinols.” The term is unfortunately left undefined in Chapter 90, and I am unaware of any other state guidance on its definition. Do delta-8 and like products qualify as controlled substances under this provision? A major unanswered question (and part of the federal court dispute) is what exactly the law means by the word “synthetic.” There is no apparent agreement on its legal definition. Broadly interpreted, any form of THC that has undergone a process of “synthesis” could fall within the statute’s reach. This interpretation seems unlikely because any THC found in a processed hemp product could be considered “synthetic” under that approach. This would produce the unintended result of outlawing any amount of processed or “synthesized” THC, including the nominal amounts found in lawful hemp products. Our law recognizes that THC from hemp under the .3% delta-9 THC amount is lawful to possess. It seems unlikely the legislature intended for processed hemp containing legal amounts of THC to be a treated as prohibited synthetic THC.

Does “synthetic” then refer to “total synthesis?” That is, the re-creation of the chemicals from scratch in a lab? Is there some distinction between organically derived isomers made from the cannabis plant, and lab-created isomers made without any use of cannabis or naturally occurring cannabinoids? Such an interpretation is consistent with some federal guidance on the term. The DEA has previously defined the term “synthetic THC” as compounds functionally similar to THC but that are lab-made and not organically derived. See Position Statement of the Hemp Industries Association Regarding Delta-8 THC and Other Hemp Derived Compounds, at 8 (citations omitted). Read this way, a delta-8 THC product sourced from legal hemp would not qualify as synthetic THC, since delta-8 naturally occurs in cannabis and is derived from the plant. This interpretation comports with a commonsense reading of state statutes and the overall framework permitting legal hemp (although we would then still have the question of what exactly qualifies as lab-made versus organically derived).

All that said, these questions (whether delta-8 qualifies as illegal synthetic THC and what does synthetic THC even mean) strike me as unsettled at best. To add to the confusion . . .

Synthetic Cannabinoids. Chapter 90 of the North Carolina General Statues defines and recognizes a class of drugs as synthetic cannabinoids. Think “Spice” or “K2”—these are chemicals designed to mimic the effects of THC but not actual cannabinoids. Synthetic cannabinoids are treated as Schedule I substances under G.S. 90-89(7) and have their own trafficking provisions under G.S. 90-95(h)(1a) (trafficking liability attaches at over 150 grams). These products were subtly marketed for a time as alternatives to cannabis before eventually being outlawed. Despite the similar names, Chapter 90 distinguishes between synthetic cannabinoids (as described in 90-89(7)), and synthetic THC, discussed above. Possession of a synthetic cannabinoid is, again, a schedule I substance, while possession of synthetic THC is a schedule VI.

So, what is synthetic THC, if not a synthetic cannabinoid? I have no idea. Maybe something like THC-O acetate—another derivative product beginning to emerge from obscurity, created from delta-8 or delta-9 THC but not naturally occurring in cannabis. What does all this mean for hemp products like delta-8 THC? They do not appear to qualify as synthetic cannabinoids under G.S. 90-87(7), as counterintuitive as that result may be. Whether they qualify as synthetic THC (whatever that might be) depends on how “synthetic” is defined.

These rules were written before the rise of the legal hemp industry, well before things like delta-8 were available, and it may well be time to be revisit them.

Federal Preemption? Stepping outside of my comfort zone of criminal law briefly, federal preemption is another potential issue when considering the legal treatment of hemp derivatives like delta-8. When Congress acts to wholly regulate a field, a state generally may not create its own set of regulations that conflict with federal law. This is not a purely theoretical concern in the cannabis field: when Indiana banned smokable hemp, the law was promptly enjoined by a federal district court on grounds that the federal government had preempted the issue by fully legalizing hemp. While that injunction was ultimately reversed and the lawsuit was withdrawn, Indiana has since taken steps to repeal its smokable hemp ban. May states ban hemp derivatives permitted by federal law? As far as I can tell, it remains an open question to what extent states can regulate hemp products beyond what federal law allows. . . not that federal law is a model of clarity at the moment. I am no expert on preemption or federalism issues in the hemp industry, but this may be another potential issue in this area.

Enforcement. Looking beyond the purely legal issues, it seems safe to say that public attitudes on marijuana have shifted in recent years. Enforcement against delta-8 and other hemp products may not the most pressing priority for most jurisdictions. Consider current Food and Drug Administration regulations, which prohibit putting CBD into food for humans or pets or making any claim of therapeutic value without FDA approval. Enforcement seems largely nonexistent, given the prevalence of CBD and other cannabinoid-infused edibles (for pets and humans) and the advertising that often accompanies those and other hemp products. Regardless of how the law develops here, it is conceivable that the status quo on CBD and things like delta-8 continues for some time, given the ambiguity of the law, the apparent lack of enforcement of existing regulations, and the strength of the hemp industry.

Conclusion. As things currently stand, delta-8 and similar products are arguably legal as a matter of federal law and are certainly de facto legal under current state and federal enforcement regimes. To the extent they could be treated as controlled substances under state law, challenges exist for any potential prosecution. The State would presumably need to present some evidence of how the substance meets the definition of “synthetic THC,” whatever that might be (or show that the substance is an analogue controlled substance). In either event, the State would also need to convince a jury that the person knowingly possessed a controlled substance—a seemingly high burden while the products can be purchased over the counter at innumerable legitimate retail locations. See State v. Galaviz-Torres, 368 N.C. 44 (2015) (reviewing the knowledge element of drug possession). That’s in addition to overcoming any potential probable cause or drug identification issues that may exist in any marijuana prosecution these days.

This is an evolving area, and a lot of issues are still to be determined. And here I thought the situation in 2019 was confusing. As they say, the more things change, the more they stay the same.

I hope everyone is staying safe and well. Please email me with questions or comments as usual at [email protected].

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