What is Delta 8 THC?
Delta 8 THC is a hemp-derived cannabinoid. Its full chemical name is Delta-8-tetrahydrocannabinol. It’s also known as Delta 8 or D8 THC. Although closely related, it’s different from its more commonly known sibling, Delta 9 THC ("Delta 9"). While both Delta 8 and Delta 9 THC are similar in chemical composition, the effects of each are unique. Delta-9 THC affects the body differently than its "brother" Delta-8 THC. Delta-9 THC is typically what comes to mind when someone thinks of marijuana . It is the psychoactive element that causes the "high" we associate with consuming marijuana.
The world is starting to get hip to just how different the two THC variants are. Often referred to as a "lighter" version of Delta 9 THC, the Delta 8 variety offers a lot of what the anti-marijuana crowd pushes against, but without the same risk of adverse results. This has caused the Delta-8 THC market to explode in popularity over the last couple of years, reaching shelf-well status in some places.
Legal State of Delta 8 in Idaho
As of current year, the status of Delta 8 THC in Idaho is quite clear: it’s illegal. The relevant section of the Idaho Criminal Code states that a person is guilty of a felony if they "manufacture or deliver any controlled substance, unless the transaction is authorized by the Idaho Uniform Controlled Substances Act." Controlled Substances Idaho Code § 37-2732. Both Delta 9 and Delta 8 THC are classified as schedule I narcotics, meaning there is no accepted medical use of the drug and a high potential for abuse. But what if the Delta 8 is derived from industrial hemp and not marijuana? As we discussed earlier, delta-8 users in states where medical and recreational marijuana is permissible are able to take advantage of less stringent laws regarding the legal purchase, use and possession of the substance. In Idaho, however, use of hemp-based delta-8 carries a similar criminal penalty—felony conviction—for violating its Controlled Substances Act. The Idaho Controlled Substance Act defines a "controlled substance" as "a drug, substance, or immediate precursor included in schedule I through V of chapter 27, title 37, Idaho Code, whether produced, distributed, delivered, or possessed within or without the state." Classification of Controlled Substances Idaho Code § 37-2704. Schedule I drugs are defined as those that "have a high potential for abuse, have no accepted medical use in the United States, and have a lack of accepted safety for use under medical supervision." Id., Schedule I Drugs Idaho Code § 37-2702. This is true for all marijuana derived THC, including delta-8, so its hemp-based production does not exempt it from Idaho law. Although some Idaho lawmakers have indicated an interest in revising these laws, in some cases even going so far as to introduce Idaho Bill HB26, which would legalize marijuana, the proposal has yet to gain traction, having been rejected during public testimony in the Senate State Affairs Committee. 5700 – Possession of Marijuana – Repeal; sponsored by Representative Armstrong, et al.
Comparison to Federal Legislation
Idaho’s laws regarding Delta 8 THC differ from the Federal Classification of the substance as a controlled Schedule I drug and the DEA’s interim rule regarding the legality of hemp-derived cannabinoids. Under the Federal Government’s 2018 Farm Bill, hemp is considered legal as long as it contains less than 0.3% THC or Delta 9-THC on a dry weight basis. As stated in Introduction to Cannabis Laws, [t]he 2018 Farm bill did not specifically incorporate references to Delta 8 THC, but rather referred to "tetrahydrocannabinols contained in or derived from hemp." The Farm Bill further defined "hemp" as including any "cannabinoids." Because Delta 8 THC is a cannabinoid, and assuming that it meets the requirements of hemp, the substance is legal under the 2018 Farm Bill. On August 20, 2021, the Substance Abuse and Mental Health Services Administration of the Department of Health and Human Services ("SAMHSA") clarified its position on the legality of marijuana extract products and confirmed that [n]on-Delta-9-THC-product extracts from hemp … do not contain more than 0.3% of Delta-9-THC and are not Delta-9-THC by themselves and should not be treated as such under the Controlled Substance Act (CSA).
While there is a discrepancy between Idaho’s criminalization of Delta 8 THC and Federal Government’s legalization of the substance, whether Idaho can enact such laws and reach to the Drug Enforcement Administration’s (DEA) October 15, 2020, interim final rule remains an open question. The DEA’s interim final rule states that "[t]etrahydrocannabinols in any form, including tetrahydrocannabinol that has been chemically converted from other cannabinoids, including, for example, the conversion of CBD produced by the decarboxylation of raw hemp materials to Delta-9-THC does not fall within the definition of hemp." The DEA does not define how one should measure the concentration levels of Delta 8 THC in a substance in order to comply with the Farm Bill. In other words, it remains an open question as to whether the 0.3% threshold referenced in the Farm Bill is applied to the standard-compliant cannabis or to the entire substance, post-extraction. This could potentially present a conflict between the laws, in that the states can regulate hemp unlike the Federal Government, and Idaho has exercised its right to regulate by categorically excluding Delta 8 THC.
Possible Repercussions of Delta 8 Usage in Idaho
While the legal landscape for cannabis in the U.S. continues to evolve rapidly, the law on Delta 8 THC in Idaho remains clear and uncompromising. Possession, sale, and even use of Delta 8 THC products are illegal under current law and could lead to serious legal consequences. Because Delta 8 THC is derived from hemp, there is a chance that consumption may go undetected by law enforcement. In instances where it is detected, law enforcement officials have broad discretion in the treatment of possession. Depending on the amount possessed, a person may be charged with a misdemeanor or felony. For example: This means that any amount of THC over 3 grams will be charged as a felony punishable by imprisonment of up to 7 years and/or a fine of $50,000.00. Beyond these offenses, selling a controlled substance such as Delta 8 THC is a chargeable offense. Idaho classifies this as a felony punishable by the following: While the legal penalties for using or possessing Delta 8 THC are already severe, the actual enforcement of such laws may be difficult . Idaho police officers must base their arrests and charges exclusively on their own observations or laboratory tests of the product; they cannot base them on a citizen’s observation, such as an anonymous complaint report. Nonetheless, even if you are not convicted, you could be represented by a criminal defense attorney in Idaho in order to affirm that you have no intention to continue with the illegal consumption of Delta 8 THC. Finally, while there remain no available court cases involving the use of Delta 8 THC in Idaho, anecdotal evidence suggests that its use is widespread. Indeed, a recent study by Leafly found that Delta 8 THC originated from the state of Idaho. As a result, consumers should always remain cautious about products such as Delta 8 THC and stay updated as more regulations continue to evolve in the state and across the U.S.
Public Attitude and Economic Effect
The public opinion towards the legality of Delta 8 THC and cannabis-related products in Idaho is a complex issue. A significant portion of the population remains opposed to the use of cannabis in any form, often due to cultural, religious, or personal beliefs. However, there is also a growing faction of individuals who see the medicinal and therapeutic benefits of cannabis derivatives like Delta 8 THC. This divide has created a somewhat paradoxical situation where the legality of Delta 8 THC in Idaho is both enthusiastically embraced by some and outright rejected by others.
The economic impact of this state of affairs can be notable. For local businesses, the challenge lies in the thin line they walk in providing products that could bring in significant revenue but also face the risk of legal repercussions. The market for cannabinoid products, including Delta 8 THC, has proven lucrative in states where such products are legal. For businesses in Idaho, this means lost revenue from consumers who may look to neighboring states for cannabis-related products.
Industrially, the trickle-down effect of the legality of Delta 8 THC affects growth and investment opportunities in Idaho. Delta 8 THC is primarily produced in controlled environments, where the right combination of cannabis sativa and hemp produce the psychoactive effect nearing that of Delta 9 THC, the compound most people associate with marijuana. Companies specializing in the cultivation of cannabis and the subsequent production of cannabis derivatives may be less inclined to set up operations in a state like Idaho, where the legality of Delta 8 THC is uncertain.
Market trends indicate that the public opinion around Delta 8 THC and other cannabinoids will continue to evolve. Whether new legislation will materialize that provides clarity to both consumers and businesses remains to be seen.
Alternatives to Delta 8 THC
In addition to hemp CBD oil as I state above, there are alternatives available in Idaho for those would-be customers who want to avoid the legal uncertainty provided by Delta 8, like HHC, THCA, and Tincture.
HHC
Like Delta 8, HHC has gained a lot of traction within the hemp community. One of the biggest drivers? Lack of psychoactivity – using HHC is unlikely to get you high. If you encounter someone who likes Delta 8 but cannot use it in Idaho, recommend HHC instead. Many brands and products are on the market; just make sure to check the origin of cannabis.
THCA
If using cannabis for its psychoactive effects, avoid minor cannabinoids altogether . Instead, go for THC. If purchasing marijuana is illegal where you live, consider THCA. It is not explicitly illegal, and some people take it to alleviate symptoms of various ailments without smoking or using THC.
Tincture
The tincture is simply CBD oil dissolved in alcohol. As such, tinctures are very similar to oils, including the fact that tincture will work the same way as CBD oil does. They both are effective in many capacities, but tinctures require skill and caution, as they could lead to alcohol poisoning if misused. If your primary goal is pain management, tincture is a great alternative to Delta 8 in Idaho.