Is Delta 8 THC Legal in Nevada?
The legalities of Delta 8 THC have evolved in this state. The laws for buying and selling Delta 8 in Nevada can be confusing at times, so we’re going to break them down for you!
Delta 9 Nevada Legal THC
Before we jump into the legality of Delta 8, let’s talk about the most popular form of THC which is Delta 9 THC. Delta-9 is the type of compound found in cannabis known for providing the euphoric effects, “high”, for the user. For example, the legal Delta 9 edibles will be an option for Nevadans. The options for Nevada include Delta-9 THC and the hydrogenated form of THC which is called Hexahydrocannabinol (HHC). The HHC products are known for providing similar effects for the user and are currently legal in every US State.
To get back to our main question, though: would it be lawful to take Delta-8 in Nevada?
Yes, Delta 8 THC is legal in the State of Nevada.
In Nevada, Delta 8 THC is allowed. Under the latest addition to the law, Nevada is now legal for Delta-8 THC. Thanks to the addition of Delta-8 THC mentioned by name in the controlled substances list, we now know its intent was to be legal by reviewing the side-by-side definition of Delta-9 THC monitored with industrial hemp. Though Delta-8 THC has been added to the list, the intent was not to deem it as illegal as it is an industrial hemp product protected at the federal level due to the 2018 Farm Bill. Essentially, lawmakers needed to add it to the list in order to monitor it separately from recreational marijuana which is regulated differently in the state.
Below is the attorney’s letter:
OPINION ON THE LEGALITY OF DELTA-8 TETRAHYDROCANNABINOL (THC)
Prepared for Dharma Isomers, LLC. December 15, 2020
You have asked us to opine on the legal status of hemp-derived products that contain delta-8 THC. Dharma Isomers, LLC (“you” or “Dharma”) is considering the distribution of products that contain delta-8 tetrahydrocannabinol (THC) converted from hemp-derived cannabidiol (CBD). You are interested in the legality of the delta-8 THC component of these products under federal law.
You have indicated that the CBD from which the delta-8 THC is converted derives from hemp that is lawfully produced as part of an agricultural pilot program established under the Agricultural Act of 2014 (“2014 Farm Bill”). You have attested that independent laboratory tests show that, prior to being converted into delta-8 THC, the hemp-derived CBD was extracted from hemp biomass that contained 0.3% delta-9 THC or less on a dry weight basis. Neither the starting hemp biomass material from which the delta-8 THC derives nor the delta-8 THC products in finished form contain more than 0.3% delta-9 THC on a dry weight basis, nor do they contain any controlled substances.
As outlined below, it is our informed opinion that delta-8 THC converted from hemp-derived CBD is legal as a matter of federal law. It is legal under federal law because the Agriculture Improvement Act of 2018 (“2018 Farm Bill”) defines hemp to include all hemp-derived cannabinoids, including CBD and THC, and removes THCs in hemp from scheduled control under the Controlled Substances Act (“CSA”).
Despite our opinion, we urge some caution. First, the legality of hemp-derived delta-8 THC is a novel issue that no federal hemp laws or regulations specifically address. Second, effective August 21, 2020, the U.S. Drug Enforcement Administration issued an Interim Final Rule (“DEA page 2 IFR”) purporting to treat all synthetically derived THCs as Schedule I controlled substances. While we think the DEA IFR is an overreach for various reasons, it necessitates caution nonetheless. There is risk that the DEA could categorize delta-8 THC as a synthetically derived THC that would be subject to the DEA IFR.
Additionally, ingestible and topical products fall within the regulatory jurisdiction of the U.S. Food and Drug Administration (FDA) under the federal Food, Drug, and Cosmetic Act (“Food and Drug Act”). Although you have not asked us to consider the legality of delta-8 THC products under the Food and Drug Act, it is important to note that the FDA has stated that it is illegal to add CBD and THC to food and to market CBD and THC as a dietary supplement. Delta-8 THC products may be subject to enforcement by the FDA, particularly if they also contain CBD.
- FEDERAL LAW
2014 and 2018 Farm Bills – On December 20, 2018, President Trump signed the 2018 Farm Bill into law. In addition to establishing a permanent framework for the domestic production of hemp, the 2018 Farm Bill removes hemp and THCs in hemp from scheduled control under the CSA. In simple terms, neither hemp nor THCs in hemp are controlled substances under federal law.
The federal definition of hemp is broad. Hemp is defined as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 [THC] concentration of not more than 0.3 percent on a dry weight basis.” The definition clearly protects hemp-derived cannabinoids, including CBD and THC. The determination of whether a substance constitutes federally legal hemp is based on its delta-9 THC concentration on a dry weight basis and not on the form of the substance or the source of the hemp in the substance.
Under the federal legal regime created by the 2014 and 2018 Farm Bills, assessing the legality of hemp products is straightforward. So long as such products are lawfully produced under the 2014 or 2018 Farm Bill, contain 0.3% delta-9 THC or less on a dry weight basis, and do not contain a controlled substance, they are legal and explicitly protected in interstate commerce as a matter of federal law.
Interstate activities involving hemp and hemp products are explicitly protected. Federal agencies, states, and Native American tribes are prohibited from enforcing against lawfully produced hemp and hemp products in interstate commerce. While these jurisdictions are free under the 2018 Farm Bill to regulate the production of hemp, their regulations may not extend beyond the growth of hemp. In practice, efforts to enforce against hemp or hemp products in interstate commerce would violate federal law. This was confirmed in the U.S. Department of Agriculture’s Interim Final Rule on the 2018 Farm Bill, which became effective October 31, 2019.
There are other implications. Any attempt to impose criminal penalties on commerce involving legal hemp products could subject law enforcement to civil penalties. The Sixth Circuit Court of Appeals recently held that prosecutors who insisted on prosecuting against legal hempderived CBD products were not entitled to immunity that federal prosecutors and law enforcement officials generally enjoy.
The DEA IFR was published on August 21, 2020, and became effective the same day. In relevant part, the DEA IFR states that even after enactment of the 2018 Farm Bill, “[a]ll synthetically derived [THCs] remain schedule I controlled substances.” According to the DEA, “the concentration of [delta-9] THC is not a determining factor in whether the material is a controlled substance.”
The DEA IFR is causing consternation throughout the hemp industry because it upends the 2018 Farm Bill. What is somewhat reassuring, however, is that DEA spokesperson Sean Mitchell has indicated that the DEA is aware of the hemp industry’s policy concerns and “has higher enforcement priorities, such as opioids and methamphetamine.” Moreover, the DEA IFR is currently in the notice-and-comment stage of federal rulemaking. Nearly 2,500 comments have already been submitted, so it is possible the DEA IFR will be modified and improved before becoming a final rule. These comments, which are being submitted by stakeholders and industry groups like the U.S. Hemp Roundtable, the nation’s leading business advocacy organization for hemp, make clear that the DEA IFR is inconsistent with the 2018 Farm Bill and would work serious challenges on the hemp products industry.
There is also a chance that the DEA IFR will be invalidated in its entirety. It is currently the subject of at least two federal lawsuits, either of which could result in the DEA IFR being struck down. This Opinion does not consider the legality of synthetic THCs in the event the current version of the DEA IFR is left intact.
FDA and the Food and Drug Act
As described above, even following enactment of the 2018 Farm Bill, the FDA retains jurisdiction over topical and ingestible products, including products that contain hemp cannabinoids. To date, the FDA has not approved CBD or THC as a food additive or dietary supplement ingredient and has taken the position that they are not generally recognized as safe for use in food and dietary supplement products. Consequently, it is likely that the FDA will consider delta-8 THC to be a new dietary ingredient (NDI) if it is to be used in dietary supplements. Manufacturers and distributors that wish to market dietary supplements that contain an NDI must notify the FDA and provide information that the NDI is safe to consume as recommended. The FDA might take a similar position in connection with premarket authorization reviews of deemed tobacco products that contain delta-8 THC. The FDA is not likely to agree that delta-8 THC is safe to consume. The FDA has stated in non-binding guidance that it is illegal under the Food and Drug Act to add CBD and THC to food and to market THC and CBD as a dietary supplement. Caution is encouraged, as delta-8 THC products may be subject to enforcement by the FDA.
In our opinion, delta-8 THC converted from hemp-derived CBD is legal as a matter of federal law. First, hemp-derived cannabinoids, such as CBD, are included in the 2018 Farm Bill’s definition of hemp, and lawfully produced hemp and hemp products are protected in interstate commerce. We think Congress clearly intended the 2018 Farm Bill to legalize all hemp-derived cannabinoids when present in products with 0.3% delta-9 THC or less on a dry weight basis.
Second, both hemp and hemp-derived THCs are removed from scheduled control under the CSA. Neither hemp nor THCs in hemp are federally controlled substances.
The DEA IFR does not change our opinion. The 2018 Farm Bill’s protections for hemp and hemp products are not limited to naturally occurring, hemp-derived cannabinoids. Even so, we are aware that there is evidence that delta-8 THC is naturally occurring in the hemp plant. As a result, there is a legitimate question whether the DEA IFR would even apply to delta-8 THC products. Moreover, we believe that the DEA IFR is an overreach and is subject to administrative and substantive attacks.
In our opinion, delta-8 THC converted from hemp-derived CBD is legal as a matter of federal law. Due to the novelty of the issue, federal and/or state law enforcement and regulatory officials might disagree. For this reason, we urge caution.
The legal advice and opinions set forth herein are an expression of our professional judgment and not a guaranty of a result. The undersigned are only licensed to practice law in Kentucky and have not included attorneys licensed in any other state in the preparation of this Opinion. Rather, our analysis is based on our understanding of federal laws and regulations on hemp and our familiarity with other legal authorities. We have not considered the legality of delta-8 THC under any states’ laws or regulations and we caution that state laws vary and, in some cases, are prohibitive. It is important to understand that due to the confusing nature of current law enforcement agency policies and priorities, it is impossible to predict with absolute certainty how local, state, or federal law enforcement officials will treat hemp or hemp products, particularly products containing CBD.
 Federal Register, Implementation of the Agriculture Act of 2018 (effective Aug. 21, 2020) (available at https://www.federalregister.gov/documents/2020/08/21/2020-17356/implementation-of-the-agricultureimprovement-act-of-2018).
 U.S. Food and Drug Administration, “FDA Regulation of Dietary Supplement & Conventional Food Products Containing Cannabis and Cannabis-Derived Compounds (available at https://www.fda.gov/media/131878/download).
 21 U.S.C. §§ 802(16)(B)(i), 812(c)(17) (Schedule I).
 7 U.S.C. § 1639o(1) (emphasis added).
 Federal Register, Establishment of a Domestic Hemp Production Program (effective Oct. 31, 2019) (available at https://www.federalregister.gov/documents/2019/10/31/2019-23749/establishment-of-a-domestic-hemp-productionprogram); see also United States Department of Agriculture, Office of the General Counsel, “Memorandum of May 28, 2019” (available at https://www.ams.usda.gov/sites/default/files/HempExecSumandLegalOpinion.pdf.).
 James Swain Rieves et al. v. Town of Smyra, Tennessee et al., Case No. 19-5319 (6th Cir. 2020) (opinion available at https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0149p-06.pdf).
 Don Jenkins, “DEA defines hemp, worrying cannabis advocates” (Aug. 26, 2020), https://www.capitalpress.com/nation_world/dea-defines-hemp-worrying-cannabis-advocates/article_67e1ed32-e7ae11ea-950a-7b4e56967b55.html.
 U.S. Food and Drug Administration, supra note 2.
Industrial hemp enthusiasts have not lost out on the ability to experience one of the psychoactive minor cannabinoids in hemp, Delta 8 THC, as it has recently been legalized thanks to a new amended law for hemp in the state.
With Delta 8 THC being an isomer found naturally in the hemp plant, and it not being the federally regulated Delta 9 THC, it had many people questioning whether it was one of the legal hemp derivatives since it is one of the isomers of hemp protected by the federal 2018 Farm Bill.
Delta 8 THC is a natural cannabinoid in hemp with potent effects that was overlooked when the Farm Bill was passed and signed by the president. Because this cannabinoid is a derivative of hemp, many residents had believed it was protected by the federal bill. However, due to Delta 8’s psychoactive qualities (of getting users high), lawmakers have decided to include this tetrahydrocannabinol (THC) variety of hemp and monitor its use in the future.
Current Nevada Delta-8 Legislation
Legislative actions in Nevada have been focused on closing loopholes but not on restricting Delta-8 THC in the state. Stemming from a series of events from reports of high Delta-8 THC products being found in the state to third-party labs not reporting Delta-8 THC content in samples, the state has been on high-alert since the Delta-8 craze began.
Nevada is a unique case since after all, recreational cannabis has been legal in the state starting in 2017. So why would the minor cannabinoid, Delta 8, start such a contentious debate in the state? To answer this, we have to go through the legislative documents that made it so.
Most states follow the guidance of the federal 2018 Farm Bill which suggests that hemp-derived products originating from legal industrial hemp farms are federally legal, as long as the Delta-9-Tetrahydrocannabinol levels do not exceed .3%. Since laws are meant to be interpreted literally, most US States have simply monitored the Delta-9 THC levels. However, with the buzz of Delta-8 THC also being psychoactive, but not explicitly expressed in the 2018 Farm Bill, state legislators have decided to revise the lawmaking Delta-8-THC a part of Tetrahydrocannabinols to monitor.
Here are some of the clauses included in Senate Bill No. 305:
“Industrial hemp” means the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a THC concentration of not more than 0.3 percent on a dry weight basis.
….“THC” has the meaning ascribed to it in NRS 453A.155
…Restrict or prohibit the use or processing of industrial hemp for the creation, manufacture, sale or use of cannabidiol or any compound, salt, derivative, mixture or preparation of cannabidiol.
Essentially, Nevada lawmakers are looking for a clear separation of legal industrial hemp from current marijuana laws to differentiate the two in the state.
Below is a timeline describing the evolving hemp laws as they’ve come to be in Nevada.
Nevada Industrial Hemp Act
The Industrial Hemp Pilot Program is managed by the State of Nevada Department of Agriculture. The program credits both the federal Farm Bill and Senate Bill 305 as the originators for their formation.
Senate Bill 305 provided the state-level authorization to grow industrial hemp in the state, while the Farm Bill provided the federal oversight to ensure federal guidelines are in place and followed.
List of controlled substances
Unlike other states, Nevada now specifically lists Delta-8-Tetrahydrocannabinol by name in their list of Controlled Substances. This alarmed many people, including manufacturers, that since Delta-8-tetrahydrocannabinol was added, it became prohibited. In the amended documents, NRS 453.139 of the Uniform Controlled Substances Act defines the following:
“THC” defined. “THC” means:
2. Delta-8-tetrahydrocannabinol; and
3. The optical isomers of such substances.
However, what most people don’t know is that lawmakers changed the law for the intent of its legality being legal, but regulated in the future. So now Delta-8 THC is actually legal in Nevada with the only restriction being at or below the .3% Delta-9 THC level. We’ll see what the future holds with regulating the Delta-8 THC levels in the future.
Buying and Shipping Delta 8 in Nevada
Since Delta 8 is legal in the State of Nevada, residents can buy and possess Delta 8 THC Products with a shipping address located in the state. All product lines with hemp extracts are now being monitored for the levels of Delta-9 in the state, with the .3% THC limit.
Retail Delta 8 THC & CBD Stores selling products (such as Delta 8 THC Gummies) can now buy bulk Delta 8 in the state.
Border States to Nevada:
Oregon, Idaho, Utah, Arizona, and California
Advocacy Groups in Nevada Supporting Delta 8 and Hemp Laws
Nevadans are continuously supportive of Delta 8 and pushing towards better Hemp Laws, in general. Check out some of the standout organizations in the State:
Cannabis Chambers of Commerce