Legal THC in Indiana – Delta-8

What is Delta-8 THC?

Delta-8 tetrahydrocannabinol (THC) (“Delta-8”) is a psychoactive cannabinoid found in marijuana and hemp. Like Delta-9 THC (the federally regulated psychoactive agent in cannabis), Delta-8 gives the user a “high” reported as being similar in effects to Delta-9 THC but with more “clear-headedness” and less anxiety and paranoia. Delta-8 is not present in hemp or marijuana in significant quantities. As a result, it’s generally synthesized or extracted in a lab to produce commercially useable quantities. This means that users consume Delta-8 through vape cartridges, edibles, concentrates, and tinctures rather than smoking plant material.

 Is Delta-8 THC legal?

Federally, the legality of Delta 8 is murky. Congress passed the Agriculture Improvement Act of 2018 (the “Farm Bill”). In relevant part, the Farm Bill legalized the production of hemp and the use of all hemp-derived cannabinoids. CBD and Delta-8 being two of the most common examples. Marijuana contains .3% or more Delta-9 THC, which is the regulated psychoactive cannabinoid. However, since Delta-8 is derived from hemp and contains no Delta-9 THC, it is not currently considered a Schedule 1 drug. As a result, it is legal to buy and use in Indiana and many other states.

If you are considering buying or using Delta-8, there are several other factors to consider. First, The Drug Enforcement Agency (“DEA”) has promulgated a new rule change that classifies all synthetically derived tetrahydrocannabinol as a controlled substance. However, there is an exception for tetrahydrocannabinol derived from hemp. The rule does not define synthetically derived, and courts have not yet interpreted what this rule means for Delta-8.

Second, as part of the extraction process, Delta-9 THC levels temporarily can exceed .3%. Even if the final consumer product is under .3%, the DEA may argue that Delta-8 is an analog of marijuana, rather than hemp as defined in the Farm Bill, and is a controlled substance. The DEA may also use the temporary increase in Delta-9 THC levels to go after producers as well. This may be a more significant issue in states that have not yet legalized recreational marijuana or for those manufacturers shipping Delta-8 products across state lines.

For now, it appears that Delta-8 is legal at the Federal level. However, the future of Delta-8’s legality may change as courts interpret the new DEA rule.

Under Indiana law, Delta-8 remains legal.

Indiana has followed federal law and legalized all “all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers of hemp with a Delta-9 THC level of .3% or less” under Ind. Code 15-15-13-6.5.

The State Legislature has not taken any steps to prohibit the sale or use of Delta-8. However, that does not mean it cannot cause legal issues.

Black market products purporting to be Delta-8 may contain more than .3% Delta-9 THC and would still be considered a Schedule 1 drug in Indiana. Even store-bought Delta-8 may trigger a positive result on a field test for marijuana. Further, in Indiana, concentrates carry more severe penalties than the possession of raw marijuana. Ind. Code 35-48-4-11(a) provides that “A person who commits possession of marijuana, hash oil, hashish, or salvia, a Class B misdemeanor.” This may lead to an arrest and potential prosecution for possession of marijuana.

Finally, despite Delta-8 being legal in Indiana, it is still against the law to operate a vehicle while intoxicated. Operating while intoxicated is not just limited to alcohol but includes both legal and illegal drugs. Consuming Delta-8 and operating a vehicle could potentially result in an OVWI charge.

If you or somebody you know has recently been accused of a crime or has questions about the criminal case process, contact the experienced criminal defense attorneys in Indianapolis at Banks & Brower, LLC. We are available at all times by calling us at (317) 526-4630 or by emailing info@banksbrower.com.