Marijuana is a substance that needs no introduction.  All of you are aware of it, most of you have used it or have used it, and those of you that have used it know it by its common name, weed.  However, I’m sure very few of you know the components that go into the psychoactive effect that marijuana gives you. For those that don’t know Tetrahydrocannabinol, commonly known as THC, is the active component in marijuana that gives the user a sensation of being “high.”

THC mostly exists in the form of an isomer Delta-9-Tetrahydrocannabinol (”Delta-9”), but more recently marijuana growers have been experimenting with different strains. This has led to a development of Delta-8-Tetrahydrocannabinol (“Delta-8”), which also is an isomer. Delta-8 and Delta-9 are similar as it concerns that “high” feeling, such as the euphoria, happiness, sedation, and relief. But what is the difference between the two then?

According to Leafly, “Delta-8, like Delta-9, binds to the body’s endocannabinoid system, which causes you to feel high. Chemically, Delta-8 and Delta-9 are similar in that they both have a double bond in their structures. This double bond is thought to produce the intoxicating effects that make you feel high. The two different THC’s are chemically different in the placement of the double bond. Both cannabinoids have a chain of carbon atoms, but Delta-8 has the double bond on the eighth carbon, whereas Delta-9 has it on the ninth. Delta-8 binds to the endocannabinoid system in a slightly different fashion because of the location of its double bond. This is what is thought to make Delta-8 much less potent than regular THC. However, more research needs to be done on Delta-8 and how it interacts with the body.”

Now if you love marijuana, you might now ask yourself since it is less potent can you get in trouble with the law? Believe it or not, technically, Delta-8 is legal. As per Leafly, “The 2018 Farm Bill, a federal act passed by Congress, legalized hemp in the United States. That act defines hemp as:

All derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent.” This language makes delta-8 legal, because it does not contain any delta-9 THC. However, some states have chosen not to adopt this specific language of the farm bill in their own state laws, making delta-8 illegal in certain states.”

Some of those states that do not recognize Delta-8 are Alaska, Arizona, Arkansas, Colorado, Delaware, Iowa, Idaho, Mississippi, Rhode Island, Montana, and Utah.

Miletti Law is no stranger to controversial and disruptive topics, so naturally, we are drawn to the development of Delta-8 and the legal marijuana industry.  If you find yourself interested in dabbling into the market for Delta-8, whether as a grower, distributor, seller, etc., we would strongly advise that you tread lightly, make sure you get your legal opinions lined up, and a full analysis on what risk you are exposing yourself to.  Keep in mind that even while some states “say” they recognize Delta-8 as legal, they will still categorize Delta-8 as Delta-9 THC, which could be a huge problem.  You need to use caution before taking this on and surely do your diligence.

We would also caution you on testing for false positives due to faulty testing methods used by labs or law enforcement.

According to State v. Robertson, 2017 Wash. App. LEXIS 2601, “The crime laboratory’s test did not distinguish between Delta-9 THC and THC acid found in the samples. Delta-9 THC is the primary psychoactive ingredient in marijuana. THC acid is non psychoactive and must be converted to Delta-9 THC to influence the user. When someone smokes cannabis, the acid transmogrifies into Delta-9 THC through a chemical process called decarboxylation. We do not know if the State’s testing machine could test solely for Delta-9 tetrahydrocannabinol.”

In this case, the court could not confirm based on a drug test and testing machine, whether Delta-9 was in the plaintiff’s system. Therefore, it was inconclusive and he was not convicted. But as new as Delta-8 is, there are also instances of the negatives of Delta-8.

In Aycock v. State, 146 Ga. App. 489, the Claimant in this matter was appealing from what he believed to be an excessive charge brought against him.  Prior to this case, the Clayton Superior Court of Georgia entered a judgment convincing Mr. Aycock of a felony count of possession, holding that was in possession of THC.  The criminal lab had a difficult time testing the substance, was unable to clearly determine its contents, and essentially concluded that the substance contained THC, which delivered a harsher penalty.  However, the Court was not swayed by the evidence delivered by the criminal lab, and applied the well-known axiom, “penal statutes are always construed strictly against the state and liberally in favor of human liberty.” As a result, the harsh results from the underlying case were overturned in Mr. Aycock’s favor.  The THC charge was dropped to a marijuana possession and as such, the sentence was substantially lighter.

While this was a good outcome for Mr. Aycock, unfortunately, it took a lot of grief and pain to get there. The fact is, when it comes to such substances, it depends heavily on the technology as well as the knowledge of the individual testing the substance.  It is all too easy to be on the receiving end of a harsh and unnecessary sentence.

The point of bringing up this case is that old habits die hard.  Marijuana has been categorically bad for years, and along with the bad stigma comes negative connotations.  Those negative connotations are apparent in law enforcement, in testing and even in subjective analysis.  Had marijuana not been stigmatized all these years, perhaps the lab wouldn’t have found THC, but rather, have found what it truly was—a far more mundane substance.

Regardless of the lighter laws on the books, the Plaintiff was still subjected to harsher treatment at first simply because old habits die hard—marijuana was categorically bad, the level of potency was of no moment for law enforcement.  Time is like a river and rivers always repeat themselves.  Be cognizant of how others, especially in law enforcement, perceive your habits and practices should you decide to be a manufacturer or supplier of Delta-8.

Be sure to tread lightly when  dealing with Delta-8.  Delta-8, is the latest form of legal THC, will likely face nonsense from those who have believed their whole lives that, legal or not, marijuana is a killer, a gateway drug, and makes others lazy and unprofitable.

Word to the wise—before you embark on this adventure, speak to someone in our office today.  Miletti Law has years of experience under its belt, and can help you make the best decision for your situation.

As Always STAY UNUSUALLY MOTIVATED and keep crafting your knack!