Is Delta8 THC Legal In Kentucky?

As of April 19th 2021, Delta8 THC is NOT legal in the state of Kentucky. On his date, the Kentucky Department of Agriculture (KDA) sent out an advisory letter stating that Delta8 THC is a Schedule I controlled substance and does not fall within the exemption created for hemp products.

The Kentucky Department of Agriculture stated:

“Delta-8 THC is a Schedule I controlled substance under federal law and Kentucky law; that distributing products containing this substance is illegal; and distributing such products could lead to your expulsion from the Hemp Licensing Program as well as potential exposure to criminal prosecution.

Let’s begin with federal law. As you know, in 2018 Congress created a narrow exemption from the Controlled Substances Act’s definition of “marijuana” (DEA numbers 7350 and 7360) for hemp that contains not more than 0.3% total Delta-9 THC. Cannabis with total Delta-9 THC in excess of that threshold remains a Schedule I substance.

There is no equivalent exemption for Delta-8 THC. That being the case, the manufacture and marketing of products containing Delta-8 THC, in any quantity or concentration level, remains prohibited by federal law.

And indeed, the federal Drug Enforcement Administration’s Controlled Substances List states that Delta-8 THC and other forms of THC are Schedule I controlled substances.”

What Is Delta8 THC?

Delta8 THC is a cannabinoid of the tetrahydrocannabinol “family” of compounds commonly derived from the cannabis plant. It is a double bond isomer of Delta9THC, a more well-known cannabinoid in the tetrahydrocannabinol family that is also produced by the cannabis plant. An isomer is a type of chemical analog. Specifically, an isomer is one of two or more compounds that contain the same number of atoms of the same elements but differ in structural arrangement and properties. There are thirty (30) known THC isomers. Delta8 THC and Delta9 THC differ with respect to the location of a single double bond.

How Is It Made?

Delta8 THC is created from CBD (a derivative of hemp) through a chemical process wherein a catalyst is introduced into CBD isolate. The process creates 4-20% Delta9 THC, a byproduct which can get you high, and is specifically addressed in the 2018 Farm Bill. Delta8 THC products can get you high, not as high as cannabis. The effect is thought to be approximately half that of cannabis.

The Legal Situation

CBD is a hemp derivative and is excluded as a controlled substance, under the Controlled Substances Act (CSA) and the 2018 Farm Bill.

The Controlled Substances Act (CSA) (21 USC § 802(16)(B)) states:

(B) The term “marihuana” does not include—

(i) hemp, as defined in section 1639o of title 7;

The 2018 Farm Bill states:

The term “hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.

Delta8 THC comes from CBD. So, it seems like it should also be excluded, right?

But it is not, since the amount of THC created is above the 0.3% threshold for the hemp exemption.

Delta8 THC is Illegal In Kentucky

To date, 15 states have offered guidance, dictated bans and issued warnings to companies distributing and producing Delta8 THC products. As of April 19^th, 2021, the marketing, manufacturing and distributing of Delta8 THC products in Kentucky is banned under Federal and State Law.