FDA and CDC Issue Warnings Regarding Delta-8 THC, Which Remains in Legal Grey Area

Sep 15, 2021 Chicago, IL

By: Douglas R. Sargent, Partner and David Standa, Partner

Yesterday, the federal Food and Drug Administration and Centers for Disease Control and Prevention issued warnings to Americans about Delta-8 THC, a cannabis compound that has psychoactive effects but is arguably legal federally and in most states.

Delta-8 THC has become increasingly popular because it can produce effects similar to Delta-9 THC—the main cannabis compound that gets you high—although to a lesser degree, leading Delta-8 THC to be referred to, or marketed as, “Weed Light” or “Diet Weed.” Further, it is in a legal grey area because almost all commercially available Delta-8 THC is sourced from hemp as opposed to marijuana. At least in theory, this distinction makes Delta-8 THC legal federally because the federal definition of legal hemp is tied strictly to Delta-9 THC concentration. Similarly, many state cannabis laws follow the federal definition of hemp and do not address Delta-8 THC specifically.

Likely due to its increased popularity and questionable legality, legislators and regulators have begun to take action. Over a dozen states have expressly banned the sale of Delta-8 THC or required that it comply with the state’s existing (Delta-9 THC) marijuana laws. Further, the federal Drug Enforcement Administration released an Interim Final Rule stating: “All synthetically derived tetrahydrocannabinols remain schedule I controlled substances.” That Interim Final Rule is being challenged in court, but its resolution could go a long way in providing clarity on the legality of Delta-8 THC. Lastly, as referenced above, the FDA and CDC issued separate warnings yesterday about Delta-8 THC. The FDA issued a consumer update with five things you should know about Delta-8 THC, including that it has been neither evaluated nor approved by the FDA and that the FDA and national poison control centers have received adverse event reports regarding Delta-8 THC, including vomiting, hallucinations, and trouble standing. The CDC’s health advisory focused on raising awareness of the increased availability of products containing Delta-8 THC and “the potential for adverse events due to insufficient labeling of products containing THC and cannabidiol (CBD).”

We are hopeful that there will be clarity on the legality of Delta-8 THC in the not-too-distant future and we will continue to provide updates on our blog. If you have any questions or would like to discuss specific situations, please contact Doug Sargent ([email protected]; 773-395-1548) or David Standa ([email protected]; 773-395-1562).

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Greenspoon Marder LLP is a full-service law firm with over 225 attorneys and more than 20 office locations across the United States. With operations from Miami to New York and from Denver to Los Angeles, our firm attracts some of the nation’s top talent in key markets and innovation hubs. Our core practice areas include Real Estate, Litigation, and Transactional Services, complemented by the capabilities of a full-service firm. Greenspoon Marder has maintained a spot on The American Lawyer’s Am Law 200 as one of the top law firms in the U.S. since 2015, and our goal is to provide exceptional client service by developing a thorough understanding of each client’s business needs and objectives in order to provide strategic, cost-effective solutions.

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FDA and CDC Issue Warnings Regarding Delta-8 THC, Which Remains in Legal Grey Area

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