Delta-8 Gummies: Are They Legal in SC?
You may have seen delta-8 gummies being sold in smoke shops or other stores in the Charleston, SC, area.
Delta-8 gummies, delta-8 oil, and other delta-8 products are the newest attempt to circumvent SC’s ridiculous prohibition on marijuana. But is it legal? What is it?
What are Delta-8 Gummies?
As you may know, a gummy is just a form of edible – a convenient package for delta-8 THC, delta-9 THC, or CBD that doesn’t require smoking the plant. As with other types of edibles, the product is available in smokable form, other types of edibles (candies, brownies), or for use in vape pens.
But what the heck is delta-8? Is it marijuana?
Delta-9 THC (tetrahydrocannabinol) is the primary psychoactive ingredient found in marijuana – for the most part, this is the chemical that causes a person to get high when they smoke weed (or eat edibles).
CBD (cannabidiol) is another psychoactive ingredient with a reportedly less powerful effect that is also found in marijuana plants. Like THC, it can be smoked, or it can be ingested or used in oil when extracted from the plant.
CBD extracted from industrial hemp is legal under state and federal law when it is taken from a hemp plant with .3 % or less THC content (assuming the grower and manufacturer are licensed and in compliance with state and federal laws).
Delta-8 THC (also tetrahydrocannabinol) is another type of THC that is found in small amounts in marijuana plants. Many in the marijuana industry are now claiming that delta-8 THC is legal under both federal and state laws, and so it is now being sold as delta-8 gummies and in other forms across the country.
Delta-8 THC reportedly has similar effects to delta-9 THC, which makes it an effective substitute for marijuana for many smokers who want to stay legal. Because it has similar effects, this also makes it a target for SC’s law enforcement leaders, who do not want you to smoke marijuana or enjoy its benefits in any form, including delta-8 gummies.
Is Delta-8 THC Legal Under SC Law?
So, is it legal?
If you google, “is delta-8 THC legal,” most sources (apart from SC’s attorney general) will say yes.
Is it though?
It’s an open question. There are no appellate opinions on the legality of delta-8 THC. SC’s law enforcement leaders claim it is not legal, but their opinions are suspect when it comes to marijuana (remember when law enforcement officials were claiming CBD was illegal under state law, that people were overdosing on it, and that stores were marketing it to children?).
CBD (cannabidiol), another psychoactive substance found in marijuana (and hemp) plants, is legal in SC. SC Code Section 44-53-110(27) specifically excludes CBD from the definition of marijuana:
(b) “Marijuana” does not mean:
(i) the mature stalks of the marijuana plant or fibers produced from these stalks;
(ii) oil or cake made from the seeds of the marijuana plant, including cannabidiol derived from the seeds of the marijuana plant;
(iii) any other compound, manufacture, salt, derivatives, mixture, or preparation of the mature stalks (except the resin extracted therefrom), including cannabidiol derived from mature stalks;
(iv) the sterilized seed of the marijuana plant which is incapable of germination.
SC law does not, however, specifically exclude delta-8 THC from the definition of marijuana. The SC Hemp Farming Act defines hemp as plants containing no more than .3 percent delta-9 THC, but it does not reference delta-8 THC at all. This has many saying that delta-8 THC must be legal due to the “loophole” in the Hemp Farming Act that makes it specific to delta-9 THC.
The fact that delta-8 is not mentioned in the Hemp Farming Act does not make it legal, however. The Hemp Farming Act does not prohibit or authorize anything other than industrial hemp farming where the hemp contains .3% or less THC. Tetrahydrocannabinol is a Schedule I controlled substance under SC law, and SC Code § 44-53-190(D)(18) references “tetrahydrocannabinol,” not delta-9 or delta-8.
So, is delta-8 THC legal in SC? At first glance, it looks like it is just as illegal as delta-9 THC, although there may be additional arguments that I haven’t heard yet.
Should it be legal?
Of course it should. Marijuana should be legal, period. The days of Nixon’s White House, when the government was looking for any method to target “hippies and blacks,” are long gone. If you didn’t know, Nixon is on tape discussing why he pushed the war on drugs and his staff has had plenty to say about it since the ’60s:
The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.
End the lie. End marijuana prohibition. End the attempts to get around marijuana laws by developing new drugs based on the plant.
Just legalize it, already.
Criminal Defense Lawyers in Charleston, SC
Charleston, SC marijuana defense attorney Grant B. Smaldone accepts criminal defense cases in the Charleston, Dorchester, Georgetown, and Myrtle Beach areas of SC. If you’ve been charged with any marijuana offense in South Carolina, including:
- Simple possession,
- Possession with intent to distribute,
- Manufacturing, or
- Trafficking in marijuana,
Call now at (843) 808-2100 or send us a message for a free consultation about your case.