Principal Research Analyst
Martin de Boer
Delta-8 tetrahydrocannabinol (delta-8) is a psychoactive synthetic cannabinoid found in the Cannabis sativa plant and shares similar molecular structures to delta-9 tetrahydrocannabinol—commonly known as THC.
Concentrated amounts of delta-8 are usually made from hemp-derived cannabidiol—commonly known as CBD. The main difference between delta-8 and delta-9 is the amount of each present in the dry weight of the Cannabis sativa plant.
Both substances also have slight differences in their chemical structure. In terms of treatment and usage (1), delta-8 is used similarly to delta-9, with effects including pain reduction, sleep support, increased relaxation, and improved appetite.
Federal Policy and History
In 2014, President Obama established the Hemp Pilot Program through the Farm Bill, which allowed state agriculture departments and research institutions to grow and study hemp. In addition, the 2014 Farm Bill defined the legal THC threshold in industrial hemp to be 0.3 percent or less on a dry weight basis.
On December 20, 2018, President Trump signed the 2018 Farm Bill into law, removing hemp and all byproducts of cannabis with less than 0.3 percent THC from the definition of marijuana in the Controlled Substances Act, and removed hemp and hemp seeds from the Drug Enforcement Administration’s (DEA) schedule of controlled substances. The Food and Drug Administration have not evaluated or approved the usage of Delta-8.
Delta-8 THC Extraction
Delta-8 must be extracted in a lab. To make delta-8 THC, cannabidiolic acid (CBDA) first must be extracted from legal hemp, typically using hemp flowers or the entire plant. Next, during the decarboxylation process, the hemp material is heated, which converts CBDA to CBD, increasing the potency of the extracted material. Once the material is “decarbed,” one or multiple methods can be used to remove the CBD from the dried plant material.
There are several ways to extract cannabinoids from the cannabis plant, including:
- Solvent-based extractions, in which ethanol is used to “wash,” break down, and extract the hemp material;
- Solvent-less extraction, which requires special equipment but does not require any solvent, making this a “cleaner” method; and
- Oil extractions, a type of solvent-based extraction that uses an oil base to slowly heat the material and separate THC and CBD material. The heated, decarboxylated cannabinoids bind with the fat molecules in the oil, resulting in an oil infused with cannabinoids.
State Regulation of Delta-8
Since delta-8 products have recently entered the market, many states have not yet passed laws regulating such products.
Definition of Marijuana or THC
The following states specifically include the delta-8 cannabinoid in its definition of marijuana or THC, which allows products to be further regulated in accordance with state law:
- New York;
- Oklahoma; and
Other states specifically prohibit the processing of industrial hemp to concentrate the delta-8 cannabinoid:
- New York; and
- North Dakota.
Both North Dakota and Oregon prohibit the possession of delta-8 products.
Delta-8 in Kansas
Attorney General Opinion 2021-4 (2) addresses the topic of whether products containing delta-8 THC are legal to sell in Kansas and whether a statutory limit exists for the amount of delta-8 THC in products.
The opinion concluded that delta-8 THC is considered a Schedule I controlled substance in Kansas and is unlawful to possess, consume, or sell unless it is derived from industrial hemp and contained in a lawful hemp product containing not more than 0.3 percent total THC.
The opinion specified that cigarettes, cigars, teas, and substances for use in vaping devices are not lawful hemp products.
The opinion further concluded that delta-8 THC derived from any source other than industrial hemp is a Schedule I controlled substance and unlawful to possess or sell in Kansas.
See the 2023 Briefing Book article “Medical Marijuana” on page 31 for more information on the study and regulation of cannabis products.
(1) FDA “5 Things to Know about Delta-8 Tetrahydrocannabinol – Delta-8 THC” https://www.fda.gov/consumers/consumer-updates/5-things-know-about-delta-8-tetrahydrocannabinol-delta-8-thc
(2) Attorney General Opinion 2021-4, https://ag.ks.gov/docs/default-source/ag-opinions/2021/2021-004.pdf?sfvrsn=791ea41a_6