Up until Friday, August 21, 2020, the legality of delta-8 THC (also known as “D-8” or “d8-THC”) has remained unclear. Now, the Drug Enforcement Administration (DEA) has made it official: any synthetically-produced delta-8 THC is now illegal at the federal level. Previously, the compound was not specifically listed as a Schedule I controlled substance. This allowed states to make a decision for themselves until now. This legal grey area has even led to many retailers selling D-8 THC products in states where medical marijuana is illegal altogether. Wisconsin’s Hemp Pilot Program regulations do not specifically cover delta-8 THC, but do include delta-9 THC and THCa.

The DEA’s newest ruling (sort of) closes this legal loophole, not only in Wisconsin, but in all 50 United States. There is still a debate whether d8-THC is synthetic or natural which we will discuss below.

But what is delta-8 THC? Understanding how this compound is different from other forms of THC (and other cannabinoids) will allow you to figure out where you stand on the DEA’s newest ban and learn about the implications this ruling could have on the CBD industry.

Delta-8 THC is one of the hundreds of cannabinoids found within the cannabis plant. CBD and THC are two of the most popular cannabinoids. Normally when you hear about tetrahydrocannabinol (THC), it is in reference to delta-9 THC. Not all cannabinoids have been studied thoroughly, but it is currently accepted that delta-8 THC and delta-9 THC are responsible for the psychoactive effects of the cannabis plant. Remember that marijuana is specifically bred to have as much delta-9 THC as possible whereas hemp is bred to have below 0.3% delta-9 THC by weight. That’s why CBD companies use hemp for CBD extraction instead of marijuana. Full-spectrum hemp products do contain trace amounts of delta-9 THC, but never enough to make a user experience any intoxicating effects. The same can be said for d-8 THC. There are trace amounts of the compound in full-spectrum CBD, but not nearly enough to give you any intoxicating effects.


In fact, BATCH’s in-house HPLC testing instrument measures levels of delta-9 THC, delta-8 THC, and THCa among other cannabinoids just to make sure. From the thousands of tests completed with BATCH’s in-house HPLC testing instrument, we’ve seen only trace levels of delta-8 THC are present in the hemp used to make full-spectrum CBD products. This was true of both hemp samples from BATCH’s own hemp grower as well as other independent samples sent in for testing by other companies in the industry.


Commercial quantities of d8-THC are made using CBD isolate and a series of chemical reactions. This makes the legal classification cloudy as processors are using a natural, hemp-derived ingredient (CBD Isolate) and chemical alterations to create d8-THC. 

The major difference between delta-9 THC and delta-8 THC is the position of a double bond in their molecular structure (see image above). While subtle, it clearly does induce different effects, as many D-8 users will tell you. It is not as well studied or understood, but experts do know that delta-8 THC produces some psychoactive effects. Anecdotal evidence suggests that delta-8 THC does make you high, although in ways that are noticeably different from a high experienced due to delta-9 THC. Specifically, users say d-8 THC produces a clearer high, without paranoia or sedating effects. It’s clear that this compound is intoxicating, but to what extent remains largely unknown.

As of right now, this new ruling by the DEA will have no impact on the CBD industry. This is largely due to the clarification that synthetically-produced delta-8 THC products are illegal. Since delta-8 THC is found in low concentrations in hemp, the legal loophole some sellers have been exploiting included creating highly concentrated (i.e. synthetic) forms of delta-8 THC from hemp extracts. These concentrates are most commonly found in the form of vaping cartridges, gummies, or other edibles. Some are mad that the DEA is placing a restriction on hemp derivatives at all. This is seen by many as an attack on the freedom gained by the Farm Bill in 2018 (which legalized the use of hemp in all 50 United States of America). Those in support of the DEA’s new ruling conclude that more research needs to be done until delta-8 THC is understood at the same level as delta-9 THC.

The DEA explicitly stated that all synthetically produced tetrahydrocannabinols (d8-THC included) are illegal. “Natural” tetrahydrocannabinols remain legal as defined in the Farm Bill (less than 0.3% THC). Whether or not d8-THC is classified as natural or synthetic remains to be seen.

The d8-THC market is gaining traction much quicker than laws and regulations can be put into place. We urge consumers to thoroughly research their local laws to determine for themselves if they are comfortable using this new cannabinoid.