South Carolina is the latest state where public officials are speaking out against delta-8 THC.
South Carolina Law Enforcement Division (SLED) Chief Mark A. Keel recently wrote a letter to his attorney general’s office expressing his belief that state law criminalizes the possession and distribution of delta-8.
Assistant Attorney General David Jones responded back to say his office agrees, as first reported by Law360.
“Our office agrees with SLED’s essential analysis that the Hemp Farming Act did not legalize THC except as defined in lawful hemp,” Jones said in a letter to Keel last week. “If the General Assembly intended to undertake legalization of THC on the scale that the industry posits, they would have done so expressly and unambiguously.”
Instead, Jones said the legislative scheme of South Carolina’s 2019 Hemp Farming Act was much narrower: to create a legal framework for the licensed regulated production of industrial hemp as defined (cannabis containing less than 0.3% delta-9 THC). Other THC variants, such as delta-8, that exceed 0.3% on a dry-weight basis do not fit that definition and are prohibited under state law, the opinion states.
“[The act] cannot fairly be read to accomplish sweeping THC legalization or a similar sea change from previously policy,” he said.
Many states have already taken action to ban or regulate delta-8 products, which have gained traction from, perhaps, a legal loophole—the U.S. Agriculture Improvement Act of 2018 (the 2018 Farm Bill) specifically defines the legal delta-9 THC concentration of 0.3% for hemp but does not define delta-8 concentrations.
While cannabis cultivars with higher delta-9 potencies are associated with greater psychoactive effects, concentrated amounts of delta-8 can be manufactured from hemp-derived, non-psychoactive CBD and then introduced to products to also create a psychoactive effect.
Although the South Carolina General Assembly has not enacted laws to regulate delta-8, Jones said the attorney general’s office believes a court would hold that the state’s Hemp Farming Act—which also uses the 0.3% THC threshold to differentiate between hemp and cannabis—does not provide an exception for, and does not legalize, delta-8 THC or any other isomer of THC in itself.
To date, Jones said “it appears” that there are no reported appellate cases in South Carolina construing the Hemp Farming Act.
“Our office has observed in the past that ‘the Hemp Farming Act of 2019 was not drafted with the greatest of clarity and needs legislative or judicial clarification,’” he said. “However, we believe that in good-faith reading of the plain language of the act in conjunction with [state law categorizing all THC isomers as Schedule I controlled substances] supports our conclusion here.”
Jones also said his office believes that serious industry stakeholders can make a good-faith argument for delta-8’s legality as a result of some of the gaps in the Hemp Farming Act.
Moreover, Jones said that any determinations as to whether there has been a violation of the Hemp Farming Act or other criminal laws is a factual question which the attorney general’s office cannot answer in an opinion.
“We defer to law enforcement and the local prosecutor’s office to make such determinations on a case-by-case basis,” he said.