What You Should Know About Delta-8 in SC Laws

A Primer on Delta-8 THC

Delta-8 tetrahydrocannabinol, better known as Delta-8 THC or simply Delta-8, is one of more than 100 cannabinoids identified in the cannabis plant. Delta-8, a minimally psychoactive compound, is chemically related to both CBD and THC. Delta-8 and CBD contain double bonds in their molecular structures; however, the placement of that bond differs between the two compounds. In the case of Delta-8, the double bond is located on the eighth carbon atom in the cannabinoid’s carbon chain, while the double bond in CBD is located on the ninth carbon atom. It is Delta-9 tetrahydrocannabinol (Delta-9 THC) that produces the characteristic "high" typically associated with marijuana.
Delta-8 is an isomer of other THC compounds, including Delta-9 THC and Cannabinol (CBN). Isomers are different compounds, but their molecules have the same number of atoms and atoms arranged in the same manner. As a result, these compounds act quite differently on the body even though they look similar at the molecular level.
How Does Delta-8 THC Differ from Delta-9 THC?
As stated above, both Delta-8 and Delta-9 THC features a double bond on their respective carbon chains; however, that bond is on different carbon atoms in each compound . This seemingly minuscule chemical difference produces remarkably different effects in users. Simply put, Delta-8 THC is about half as potent as Delta-9 THC. While Delta-9 THC tends to produce psychoactive effects that include changes in perception, a heightened appetite, reduced pain, and instillation of euphoria, Delta-8 THC provides a much milder impact. For example, a typical Delta-9 THC dose is 10mg with a duration of 6 hours. Meanwhile, a typical Delta-8 THC dose of 20mg with a duration of 7 hours.
There are several reasons CBD companies are turning to Delta-8 THC. Delta-8 THC is readily available and relatively inexpensive to produce, making this less-potent cousin a cost-effective option to create and sell large volumes increasingly-popular products, such as pre-rolled joints and vape cartridges. Delta-8 THC use is also thought to produce fewer side effects than its Delta-9 THC counterpart. More research is needed, but anecdotal evidence suggests Delta-8 THC helps users who seek pain relief or a way to combat substance use disorders because it provides a sense of comfort without the potent euphoric effects caused by Delta-9 THC.

The Current State of Delta-8 in South Carolina

The current legal status of Delta-8 THC in South Carolina is currently in a state of flux. On November 23, 2022, the South Carolina legislature approved a bill, H. 3604 (the "Bill"), banning the sale of all "products that contain any amount of tetrahydrocannabinol ("THC") derived from cannabis," which includes Delta-8, within the state of South Carolina effective April 1, 2023. It is anticipated that on January 11, 2023 when the legislative session resumes, this Bill will receive a vote in both the Senate and House and then head to Governor McMaster’s desk, where it is expected to be signed into law. The pre-filed Bill defines the term "tetrahydrocannabinols" or "THC" as "Any material, compound, mixture, or preparation containing any naturally occurring tetrahydrocannabinol or any synthetic equivalent of the same, whether produced directly or by extraction, or by a chemical synthesis, or by a combination of extraction and chemical synthesis, or by any other means, regardless of whether the tetrahydrocannabinol is psychotropic or nonpsychotropic, except for hemp extract products and pharmacist-compounded drugs for human consumption pursuant to Section 44-53-110. Hemp extract products shall include, but are not limited to, hemp extract sold in capsule, oil, syrup, or topical form." In addition to banning the manufacture and sale of any product which contains Delta-8, including flower, oil and edibles, the Bill also prohibits the promotion of any such substance which is marketed for human consumption. The Bill provides no indication of how this ban will be enforced, and what penalties will be levied on violators, both in terms of criminal and administrative action or otherwise. In the context of hemp federally, South Carolina’s Delta-8 ban may be viewed as preempted by the federal Agricultural Improvement Act of 2018 (the "Farm Bill") which legalized the production of hemp containing up to 0.3% THC. However, several states have adopted similar legislation, inconsistent with the Farm Bill, banning the sale of products containing up to 0.3% THC in order to protect the health and safety of the public and to promote agricultural economic development in these jurisdictions. As such, the legality of H. 3604 and whether or not the state can criminalize the possession or sale of hemp products that are legal under federal law, will be challenged by manufacturers, retailers, and consumers in Southern District of South Carolina.

Federal Legislation and Delta-8

Federal laws also play a significant role in the understanding of Delta-8 legality. The 2018 Farm Bill legalized the cultivation of industrial hemp, a cannabis plant with low concentrations of THC. The bill defined industrial hemp as cannabis with less than 0.3% THC. Since Delta-8 is derived from THC, the 2018 Farm Bill cleared the path for its legality. However, states can still enact laws to ban THC, and South Carolina has.
In South Carolina, the state law penalizes possession and sale of marijuana, but doesn’t mention THC, Delta-9 or Delta-8 specifically. The state, therefore, looks to federal law to determine whether THC is legal. Congress’s use of the phrase "delta-9, or other secretary-controlled substances," in the definition of THC, demonstrates their intent to include not only fully psychoactive cannabis, delta-9 THC, but also lesser psychoactive chemicals, such as Delta-8.

Delta-8 and the South Carolina Hemp Farming Bill

The recent evolution of the cannabis market has led to the commercialization of a THC isomer known as delta-8 (Δ8) THC. Δ8-THC is an intoxicating form of tetrahydrocannabinol that is derived from cannabis plant material. At present, this chemical can be obtained synthetically within many medical and recreational marijuana states, but has gained great popularity in states where marijuana is not (yet) legal.
The source of Δ8-THC cannot be definitively said to be marijuana or hemp since Δ8-THC can be obtained from either Δ9-THC isolated from cannabis plants, or from CBD derived from industrial hemp. Δ8-THC products can also be obtained through various chemical transformations of CBD isolate.
This last point is arguably the most important import of this post. Even in a state such as South Carolina where marijuana is illegal, one can buy Δ8-THC products if the Δ8-THC was derived from CBD and there are no components of marijuana found in Delta-8 products, even if the Δ8-THC was procured within another state but transported into a state where marijuana is illegal (see, for instance, the case of United States v. Hyde, discussed in this article). Moreover, Δ8-THC can be legally transported into a state where marijuana is illegal if it was produced from industrial hemp. That’s right, even if Δ8-THC was derived fully from marijuana Δ8-THC is legal depending on where you produce it and or obtain it.
The authority for this is contained in the Agricultural Improvement Act of 2018, commonly known as the "2018 Farm Bill." The 2018 Farm Bill legalized the production of hemp (Cannabis sativa L.) for a number of reasons, arguably the most important of which are to: Effectuates the 2018 Farm Bill is the Hemp Farming Act of 2007 (HFA). The HFA legalized the production of industrial hemp by removing "hemp or cannabis" from the definition of Marihuana in the Controlled Substances Act. This change opened up the floodgates, and now certain THC isomers such as Δ8-THC are routinely produced within some states and transported into others.
However, the HFA imposes restrictions on the production of industrial hemp. For instance, industrial hemp must be produced from cannabis that contains no more than 0.3% Δ9-THC. Δ9-THC is also classified as a controlled substance under the Controlled Substances Act, codified in the U.S. Code as 21 U.S.C § 812. According to United States v. Weed, Δ9-THC is distinguishable from Δ8-THC in that Δ9-THC, not unlike Delta-9 Tetrahydrocannabinol (Δ9-THC), causes intoxication and is a controlled substance, whereas Δ8-THC is not.
Since Δ9-THC is a controlled substance, cannabis plants cultivated for hemp production should contain no more than 0.3% Δ9-THC. It is generally understood, though continuing scientific research is required in this area, that industrial hemp contains only trace amounts of Δ8-THC, which makes industrial hemp a preferable feedstock for Δ8-THC production. This point as it relates to the legality of producing Δ8-THC will be made clear below.
In addition to its intoxicating effects, Δ8-THC is also a controlled substance and remains illegal under the Controlled Substances Act. The relevant provision of the CSA is codified in the U.S. Code as 21 U.S.C § 812. In addition to Δ9-THC, Δ8-THC is listed as a controlled substance, making both forms of tetrahydrocannabinol illegal under the CSA. But the relevant issue here is whether Δ8-THC is legal under the HFA.
Because Δ8-THC is not listed in the schedule of controlled substances under the CSA, Δ8-THC is legal under the Hemp Farming Act. Furthermore, because South Carolina has legalized industrial hemp production, Δ8-THC produced within the state can be legally sold.
For Δ8-THC, the distinction between marijuana and hemp is its Δ9-THC content. Δ8-THC and Δ9-THC are quasi-isomers, whereas Δ8-THC and Δ8-THC (another variety of Δ8) are structural isomers. The former is the intoxicating version, while the latter is non-intoxicating.
Thus, if Δ8-THC is derived from CBD sourced from industrial hemp, the product is legal and therefore not illegal to sell in a state such as South Carolina. However, the legality of Δ8-THC is based on where the product is produced.
In South Carolina, retail restrictions have not yet materialized, but local law enforcement agencies are aware that Zeus, Vibe, Delta Effex, and Cake Delta brands can be legally sold to people over the age of 21 in the state.

Enforcement Issues

The South Carolina DHEC Public Health Regulations Section 95-19 – "Sale or Distribution of Products Containing Delta-8 Tetrahydrocannabinol, Delta-9 Tetrahydrocannabinol, Cannabidiol, or Other Cannabinoids or Isomers" – provides for the imposition of fines or disciplinary action for violation of the section’s requirements. Given the contentious nature of the role and authority of state regulators in the ongoing debate over Delta-8 tetrahydrocannabinol and the legality of hemp-derived products, as well as the aggressive approach taken by major federal regulatory agencies with respect to enforcing the federal Controlled Substances Act (CSA) , a robust enforcement effort against manufacturers and sellers of Delta-8 products in violation of the section would not be unexpected.
Under this regulation, the following entities could be subject to enforcement by the Section under the South Carolina Administrative Procedures Act:
Section 95-19(I) specifically provides that if the South Carolina DHEC violations are related to the sale of CBD products, such violations are also violations of the S.C. Department of Agriculture’s Hemp Farming Act Guidelines, S.C. Code Ann. § 46-55-10 et seq., and the S.C. CannaBis Program Act, S.C. Code Ann. § 44-53-110 et seq.

Health and Safety Issues

The public health and safety concerns surrounding Delta-8 are paramount given the many unknowns. Delta-8 has not been fully evaluated or researched to determine its safety or efficacy. In addition, testing labs have identified residual solvents, microbials, pesticides and even synthetics in independently purchased Delta-8 product. These additional compounds could have dangerous and long-term effects from improper ingestion. The federal government has completely relinquished the approval of Delta-8 and hemp-derived extracts to be administered to the public. It is no surprise, therefore, that Delta-8 consumers face potential adverse effects. The state’s ability to regulate these products appears to be fundamentally flawed, given that the only major requirements to distributing or selling these products at the state level are registering with the USDA (which there is no clear evidence that supports this application) and a Certificate of Analysis showing acceptable THC levels, typically under 0.3 percent. As a result, the threshold question for the administration of Delta-8 at the state level is whether such a compound is worthy of regulation and whether the state has the resources and wherewithal to conduct such a program. Adding to this problem, South Carolina has seen a laundry list of completely uncontrolled cannabinoids, such as Delta-10 and Delta-8. These compounds are similar in nature to Delta-8 and identified as synthetic in other states. South Carolina, like several other states, is receiving heightened activity related to Delta-8. Public outcry is growing as more and more citizens are educated in Delta-8 and see it for what it is—a big problem with serious consequences.

A Look Ahead to Future Delta-8 Bills

Looking ahead, there are several pending bills that if passed, will change the legal status of Delta-8 in South Carolina.
The Hemp and Hemp-Derived Compounds Registration Act was introduced to the State House on April 19th, 2022. If passed, this Act would replace the current, quickly developing list of hemp and hemp derived compounds that can and cannot be sold in South Carolina, with a single registration and permitting process for all. This registration and permitting process would apply to businesses, such as convenience stores, smokeshops, headshops, cbd-only shops, and smoke shops, who engage in the manufacture, distribution, and/ or sale of hemp and hemp-derived compounds. The outline of the process may help to clarify any confusion among local businesses about what is and isn’t allowed to be sold aside from Delta-8, Delta-9, and Delta-10 THC.
A second pending bill has been introduced to the State House as well. My experience in working with unregulated hemp products may lead me to believe that this bill has little chance to pass in this form, but this is my personal opinion. S. 122, pending as a substance ban bill, was introduced on March 2nd, 2021, and crosses over from the Senate with the latest amendment on March 4th, 2022.
As it stands, S. 122 enacts a substance ban on Delta-8 THC, Delta-9 THC, and Delta-10 THC only. It does not prohibit products containing Delta-8, Delta-9, or Delta-10, only the THC molecules themselves . So is that a ban? Well until a court of law or an appellate brief deems otherwise, it is not clear whether S. 122 would apply to businesses selling products containing Delta-8, Delta-9, or Delta-10 as well. And in consultation with an attorney who has spent a career on the criminal defense side, until there is a full understanding of what S. 122 entails, businesses should be cautious in deciding whether or not to continue selling any product containing Delta-8, Delta-9, and/or Delta-10.
If S. 122 is enacted into law as written and enforced as written, it is unclear whether anyone would face revocation of their business license for selling a Delta-8, Delta-9, or Delta-10 containing product. It is equally unclear whether the supplier or store owner selling the product would be facing a misdemeanor criminal charge. If there are any subsequent criminal or civil charges facing the supplier, distributor, or retailer, the bulk of the charges will be focused on Delta-9 THC, as you can’t have a product containing Delta-9 without also having Delta-8 or Delta-10 but you can have a product containing Delta-8 without having Delta-9 or Delta-10.
If S. 122 is amended and with enough push back from the overwhelming number of South Carolina voters who oppose substance bans, this bill will die in the current session and will be reintroduced in the next session with a different form to be discussed and voted on by the 124th General Assembly.