Delta 8 is an up and coming cannabinoid in popularity amongst the general public. It’s a cannabinoid similar to Delta 9, which is the main psychoactive cannabinoid that creates the euphoric high. But Delta 8 is considered to be federally legal, and Delta 9 is a controlled substance. How is that possible?

On the molecular level, Delta 8 and Delta 9 are similar except for a difference in double bonds. Delta 8 has a double bond on the 8th carbon chain. Whereas Delta 9 has a double bond on the 9th carbon chain. It’s this difference that separates these cannabinoids. Delta 8 is considered less potent and more controllable than Delta 9. It’s also said to not have any unwanted side effects like a clouded head and increased paranoia and anxiety. So, what makes Delta 8 legal and not Delta 9?

Federal Law

2018 saw the USDA pass the Farm Bill. In this bill, hemp and marijuana became defined separately for the first time since the start of the Controlled Substances Act in the early 1970s. This act said if anything comes from the cannabis plant, whether it has psychoactive properties or not, it is illegal to possess or consume. This is how cannabis became a Schedule I drug, which is the highest classification of drug that the US has.

With each substance defined separately, the hemp industry has exploded across the county in just a few short years. The USDA defines hemp as: 

“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 delta9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”

This means that as long as a product contains less than 0.3 percent of Delta 9 within it, then it is legal to grow, produce, sell, and consume within the United States. Because Delta 8 and Delta 9 are structurally different on the molecular level, Delta 8 products will naturally contain less than 0.3 percent of Delta 9 within them. 

But just because hemp and Delta 8 are federally legal doesn’t mean they are legal in each state. States create their own laws when it comes to hemp, and therefore Delta 8. It’s how some states have legalized medical marijuana and others haven’t. So, what does West Virginia state law say about Delta 8?

West Virginia State Law

West Virginia is like a majority of the states, their state legislature has adopted the same definition of hemp as stated in the Farm Bill. So, as long as a product contains less than 0.3 percent of Delta 9 within it, then it is legal to grow, produce, sell, and consume within the state. West Virginia state law has also gone on to state that:

“‘THC’ means tetrahydrocannabinol. Notwithstanding any other provision of this code to the contrary, the THC found in industrial hemp shall not be considered to be THC for the purposes of qualifying as a controlled substance.”

Any THC found in industrial hemp does not qualify the product as a controlled substance. This makes Delta 8 not a controlled substance. So it can be consumed within the state. This clarification further defines Delta 8 as legal within the state of West Virginia. Laws are always subject to change, however. Research the laws in your state before purchasing and consuming any Delta 8 products.

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