The stratospheric rise of products containing ∆8-tetrahydrocannabinol (Delta-8 THC) and ∆10-tetrahydrocannabinol (Delta-10 THC), both of which can cause psychoactive effects similar to ∆9-THC (the substance codified as “marihuana” by the federal Controlled Substances Act), have raised questions regarding these products’ legality under federal and state law. Recent litigation developments have indicated a possible trend toward a finding that these products are legal (or maybe more properly described as not illegal) under federal law unless state law imposes stricter requirements.

As we have previously covered here, the Agriculture Improvement Act of 2018, commonly referred to as the 2018 Farm Bill, effectively federally legalized any products derived from the plant Cannabis sativa L and containing no more than 0.3% Delta-9 THC. Delta-9 THC is the well-known psychoactive compound in cannabis. Since the 2018 Farm Bill became law, products containing Delta-8 THC and Delta-10 THC have become popular. Some states, however, have taken a dim view of this newest trend and have been cracking down on stores selling such products.

In January 2022, Georgia’s state attorney general’s office ramped up enforcement on these products and began ordering raids of businesses. Georgia companies are now fighting back, having recently filed a lawsuit in Georgia state court seeking a declaration that Delta-8 THC and Delta-10 THC are federally legal. The companies’ argument is that these products are legal as long as they meet the 2018 Farm Bill’s definition of hemp; namely, that their ingredients are derived from the plant Cannabis sativa L and contain less than 0.3% Delta-9 THC. Delta-8 THC and Delta-10 THC, meanwhile, have slightly different molecular structures but can still be derived from “hemp” as defined by the 2018 Farm Bill. Notably, Georgia (like other states) has incorporated the 2018 Farm Bill’s definition of hemp into its state law.

The Georgia lawsuit is not the first of its kind. In Texas, a state trial court judge previously entered an injunction prohibiting the Texas Department of State Health Services from enforcing a ban on Delta-8 THC products, and the Texas Court of Appeals allowed that injunction to stand pending the resolution of that case. Not long afterward, a state trial court in Kentucky similarly upheld an injunction prohibiting the commissioner of the Kentucky State Police from “instituting or continuing any criminal enforcement action on the basis of legally compliant Hemp,” which “includes any products that contain [Delta-8 THC] unless it contains more than 0.3 percent [Delta-9 THC].” The granting of an injunction to preserve the status quo is only a small victory in these ongoing battles, but Delta-8 THC and Delta-10 THC will remain available in these states pending final decisions on the merits (in the absence of any additional state legislation).

Notwithstanding these decisions, the legality of Delta-8 THC and Delta-10 THC will continue to vary on a state-by-state basis depending on whether states have adopted a different definition of hemp that prohibits the sale or possession of these products. Several states, including but not limited to Alabama, Tennessee, and now Kentucky, have introduced bills attempting to ban Delta-8 THC and Delta-10 THC products, although the legislation recently died in the Alabama Legislature. For now, Delta-8 THC and Delta-10 THC products appear to be legal under the 2018 Farm Bill’s definition of hemp. Of course, a change to the terms of the 2018 Farm Bill by Congress could impact the status of Delta-8 THC and Delta-10 THC products nationwide. We will continue to monitor litigation developments in this important area of the law.