WTF is Delta-8 THC?

The story behind the quasi-legal cannabinoid.

The Broccoli Report 
Monday, November 30, 2020
Time to read: 6 minutes, 9 seconds. 1232 words.

Good morning, creative cannabis community! 

Now that I’ve caught up on GBBO and (successfully!) baked an olive oil cake in my cast-iron skillet,  I’ve been taking wake and baking to a whole new level. I’m even considering ordering a set of piping tools so I can dedicate the rest of the winter quarantine to finding my inner Gemini Bake. Watch this space.

Today, we’re talking about a different kind of baked good: Delta-8 THC. It’s the cannabinoid touting a trippier high (like real weed high); the one that’s sold alongside CBD and shipped across state lines; the cannabinoid that’s maybe no less illegal than regular weed. 

I’ll be back on Friday with another juicy, behind-the-curtain, industry interview with Prismatics, a PR firm that represents a bunch of cannabis brands that we love. Learn how a PR agency really works, what to consider when you’re thinking of hiring a firm, how to know if it’s working, and how outreach is evolving since the pandemic—especially when it comes to weed.


WTF is Delta-8 THC? Behind the quasi-legal cannabinoid on everyone’s radar.

A while back, a Broccoli reader reached out to us with a question about Delta-8 THC. They wanted to know if it was safe to go ahead and buy a product containing Delta-8 THC from their local CBD retailer, because anything hemp-derived that comes from a regular grocery store or CBD shop is legal … right? Well, not quite.

Thanks to the Farm Bill, hemp is legally defined by its THC content (anything below 0.3% THC can be called hemp). Most cannabis and hemp legislation defines the federally illegal cannabinoid THC as “Delta-9 THC,” because that’s the cannabinoid most commonly associated with getting folks high. 

But Delta-9 is not the only cannabinoid with THC; cue Delta-8 THC. On a molecular level, Delta-8 THC and Delta-9 THC are nearly identical, but they are just different enough to create a slightly varied experience of being "high." Delta-8 THC has a psychotropic effect similar to about half the degree of a regular puff of pot, and many find that it offers similar physical relief to CBD. It can even make you fail a drug test

Our government has made it abundantly clear that Delta-9 THC is federally illegal. So is Delta-8 THC illegal too, if it's not mentioned specifically? 

Answer: Yes, because of the Federal Analogue Act

The Federal Analogue Act, 21 U.S.C.§ 813, is a section of the United States Controlled Substances Act passed in 1986 which allowed any chemical "substantially similar" to a controlled substance listed in Schedule I or II to be treated as if it were listed in Schedule I, but only if intended for human consumption.

Because Delta-8 and Delta-9 are so similar, Delta-8 automatically falls within the legal restrictions of Delta-9 THC. So why is Delta-8 popping up in unregulated and legal markets, like CBD?

Hemp businesses are seeing how far they can butt up against both the Farm Bill laws and especially the Federal Analogue Act. Producers selling Delta-8 in unregulated markets are basically doing what early CBD producers did: they are betting on the fact that the federal government won't be able to crack down on them quickly, and they are hoping that THC will become federally legal sooner rather than later (not the craziest gamble, given this week’s scheduled floor vote and an incoming administration touting decriminalization). 

These businesses have chosen to treat Delta-8 like CBD and are sending it across state lines. Entire websites dedicated to the hemp-derived THC product have sprung up. In Chicago, you can even order a Delta-8 THC-infused scone with your latte at the Wake’n’Bakery. Goodekind, a CBD brand that sells specialized products like CBG topicals and a Delta-8 THC vape cartridge, chooses not to ship anything containing Delta-8 THC to the less cannabinoid-friendly states of Alaska, Arizona, Arkansas, Delaware, Idaho, Iowa, Mississippi, Montana, Nebraska, Nevada, or Utah. 

Licensed cannabis brands operating in the regulated market are able to sell Delta-8 THC legally, because they’re adhering to their state’s legal cannabis guidelines. For example, LEVEL have been working with isolating unique cannabinoids for a while; LEVEL features Delta-8 THC in their line-up of futuristic swallow-able and sublingual tablets. WUNDER is another regulated brand in the California market which doses their signature fizzy drinks with 2mg THC, 4mg CBD and 2mg Delta-8 THC per petite can. 

In all instances, treading lightly and in accordance with state laws seems wise. As the law firm Coats Rose acknowledged in a blog post last August, “The government probably did not intend to create a pathway to legally get high from THC, so be prepared for the law to change at any moment.” 

And there are other good reasons to be cautious. Any time a product falls into the shadowy overlap of already grey legal areas, it’s ripe for misrepresentation and quality issues. We’ve seen it with gas station CBD products, pay-to-play test results—the list goes on. Before diving head-first into producing a Delta-8 THC product, companies need to gauge their appetite for risk, and prepare for an array of challenges, from formulation and packaging to the design, marketing, and consumer education required to sell an unknown cannabinoid, not to mention the ordinary challenges (like losing access to banking and payment services) that still plague brands in the space. Companies that choose to waver between the legal market and the unregulated one may find themselves lost in the weeds.


One-hitters: Cannabis industry news at a glance.

  • Broccoli branches out into publishing, announcing their first art book. Meet Snail World: Life in the Slimelight, by Aleia Murawski and Sam Copeland. The hardcover book is filled with dreamlike and often hilarious images evoke the melodrama of daily life: a snail alone in an apartment with one last box to move; two snails getting slime all over grandma’s plastic-covered armchairs; a frog doing karaoke in a heart-shaped hot tub. 

  • Sun+Earth Certified, an organization providing certification of sustainable, ethical, and community-based cultivation practices, has partnered with Dr. Bronner’s on a limited edition hemp soap bar fragranced with hemp terpenes from the llama-friendly fields of East Fork Cultivars in Takilma, Oregon.

  • Virginia Governor Ralph Northam announces plans to introduce an adult-use cannabis legalization bill when the General Assembly reconvenes in January. Go Ralph!

  • On the other hand, South Dakota Governor Kristi Noem—the same governor who spent pandemic relief funds on a tourism campaign to bring in out-of-state visitors—is backing a lawsuit filed by law enforcement agents that claims the ballot that legalized cannabis for medical and adult use should be thrown out. The lawsuit essentially claims it's not legal for a South Dakota law to multitask to this degree, but hopefully judges put the peoples’ 54% approval vote before the semantic arguments of opposers. 

  • Toronto-based Dirt launches a website for Dirt International Inc. complete with a calendar of future infused dining events (on hold, for now), cinematic meditations, and an online store of cannabis and hosting accessories.

  • Tokeativity is collaborating with PAX on The Budtender Experience: a series of happy hour smoke sessions featuring activities, giveaways, education, and more. They’re fun and free and there’s one this evening featuring infused cooking with Chef Nikki and high, rap priestess vibes with Lizzy Jeff.

  • Hemp brand Dad Grass releases the Beurre De Sqirle Dad Stash—a new 5-pack of pre-rolls packaged to look like a box of artisanal butter for optimal camouflage in the pantry. 50% of proceeds from sales will be donated to Immigrants Charitable Foundation, an LA-based organization distributing food to those experiencing food insecurity. 


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See you Friday for our dive into the world of PR,

Lauren Yoshiko