If you’re unfamiliar with Delta 8 THC, it’s the semi-legal, hemp-derived cannabinoid that’s less potent than regular (Delta 9) THC, but can still get you high. 

Why is Delta 8 semi-legal? To back up, it’s important to understand the origins of where each cannabinoid is found in the plant. Delta 8 THC is derived from the hemp part of the cannabis plant, and Delta 9 THC is derived from the rest of it, called either cannabis or marijuana. The terms are used interchangeably. 

Due to Congress passing the Hemp Farming Act of 2018, it’s legal to grow hemp as long as the plants don’t contain high concentrations of Delta-9 THC, which is anything over 0.3 percent. However, the law does not address other forms of THC, such as Delta 8. As a result, Delta 8 THC is not federally illegal—it’s not even recognized in the Act.

It gets even more complicated, especially given the patchwork of state laws that currently exist. Some states have legalized Delta 8, while others have not addressed the issue. As a result, a “Delta 8 is not illegal” market exists in several states—like Utah.

Medical-use only cannabis became legal in Utah in late 2018. Additionally, according to the Utah Controlled Substances Act, hemp-derived THC is prohibited under state law. While Delta 8 THC is not specifically listed, there’s little if any potential loopholes in the legislation: Delta 8 is illegal.

That said, Utahans can still get Delta 8 easily, and many Utah businesses are selling it in the open—like WB’s Eatery. 

“We do not serve infused products with Delta 8 or CBD. We sell Milli D8 and WB’s CBD oil for guests to take home, and or control the dosing for themselves. It’s federally illegal to infuse food or drink as well as on the state level,” says Amy Wanderley-Britt, co-founder of the 360 Restaurant Group, which owns WB’s Eatery. 

When asked for clarification as to whether guests are allowed to use Milli Delta 8 on WB’s premises, and if that is allowed under Utah state law, Wanderly-Britt says, “They are allowed to consume onsite but must dose themselves.”

Since Delta 8 is not federally illegal, it is also not regulated. Therefore, few restrictions exist as to what can go into a Delta 8 product, as opposed to the heavy regulations associated with the legal cannabis industry. This phenomenon has created a booming market in which unregulated Delta 8 THC products, ranging from edibles to flower, are created and sold all over the country. 

This lack of regulation is a concern for lawmakers because, while Delta 8 does occur naturally in hemp, it is in low percentages. So, a large portion of what is being sold in the market is Delta 8 that has been isomerized from CBD. CBD is a non-intoxicating cannabinoid also naturally occurring in hemp, known for its calming and soothing properties. Isomerizing involves applying acid and heat to CBD to produce the Delta 8. The process produces a synthetic version of Delta 8; for sale in vape carts, tinctures, edibles, and more.

Scientists are concerned about synthetic Delta 8, since the isomerization process produces unidentified byproducts that then exist in these products, and not much is known about them and their effects on a person’s health. In addition, synthetization produces identified byproducts, some of which are alarming. According to a study published by the American Chemical Society, some of these byproducts include lead and mercury.

Citing these results and stating that it is a safety issue, health experts are pushing for more regulation of the Delta 8 market, similar to those that exist in the legal cannabis industry.

Which makes sense. Delta 8 can still get users high—though they may need to ingest more of it. Experienced users claim that Delta 8 is not as strong as Delta 9 THC, or that it produces a different type of high, it’s still effective. And other users claim it’s just as potent as the real thing. 

More to the point: Delta 8 is easier to obtain, in many circumstances. Due to the lack of regulation, Delta 8 is for sale in a variety of businesses, ranging from CBD shops to pipe stores. Customers can walk into these stores and purchase products without having to go through the rules and regulations that exist in some states’ legal cannabis dispensary laws.

Not that that’s necessarily legal. “Utah treats Delta-8-THC the same as Delta-9-THC. Products containing significant amounts of either of them are limited to the medical cannabis program. If the Delta-8-THC was produced semi-synthetically the product is required to explicitly state this on the label,” says Brandon Forsyth, director of the Cannabis and Hemp Division for the Utah Department of Agriculture and Food. 

That’s the medical cannabis program. But what about recreational cannabis, or cannabis available to the public, such as the D8 products sold at WB’s Eatery? 

“Cannabinoid products available to general Utah consumers, ‘hemp products,’ are restricted in both the amount of a THC analog they can contain (<0.3 percent of the total product mass) and the ratio of the THC analogs to other non-THC analog cannabinoids (<10 percent of the total cannabinoid content),” says Forsyth.

Bottom line: the sale of Delta 8 is not legal in the State of Utah.

Which begs the question, how are businesses such as WB’s Eatery getting away with selling it?

The state laws delineate an escalating list of penalties for illegal possession, sale and cultivation, from misdemeanor to felony convictions with the associated penalties. The laws are simply not being enforced. According to Forsyth, the criminal prosecution of unlicensed growers, processors, and retailers happens with county-specific police agencies. But none of the police agencies that we reached out to responded regarding the enforcement of these laws. 

While arrests are made in Utah for illegal possession of cannabis, the majority seem to be at traffic stops when offenders are pulled over for other reasons.

It appears that Utah is trying to make progress in refining the Medical Marijuana Program and improve regulation overall. And as cannabis, in general, continues to legalize throughout the country, it’s only a matter of time before recreational cannabis is legalized in Utah. When that happens, going after businesses illegally selling Delta 8 will most likely become even less of a priority than it already is. 

Legal cannabis is a booming, billion-dollar industry that is only going to grow and continue bringing a tax base to the states in which it is legal. And it’s only a matter of time before cannabis is legalized on a federal level.