South Carolina Says Delta-8 Not Legal Under State Hemp Law

In a letter to South Carolina’s Law Enforcement Division chief, state Assistant Attorney General David S. Jones said that delta-8 THC—or any other forms of THC derived from hemp—is not legal under the state’s hemp law.

“We believe a court would not hold that the Hemp Farming Act does not provide an exception for, and does not legalize, delta-8 THC or any other isomer of THC in itself… [The Hemp Farming Act] categorizes all isomers of THC as Schedule I controlled substances ‘unless specifically excepted.’ The only exceptions found in the Hemp Farming Act involve ‘a delta-9 THC concentration of not more than 0.3[%] on a dry weight basis.’”—Wilson in the October 8, 2021 letter

The letter was in response to an inquiry from the Law Enforcement Division, in which it had determined that the “unambiguous language” of the hemp law would “clearly criminalize the possession, possession with intent to distribute, or distribution of any and all amounts of delta-8 THC, or any other variant of THC, found in South Carolina.”

“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,” Jones opined. “Instead, the legislative scheme of the Hemp Farming Act is much narrower: to create a legal framework for the licensed, regulated production of industrial hemp as defined. It cannot fairly be read to accomplish sweeping THC legalization or a similar sea change from previous policy.”

In June, the Hemp Industries Association (HIA) and its attorneys, Kight Law, had released its own legal opinion arguing that the 2014 and 2018 Farm Bills—which legalized hemp federally—allow for delta-8 THC products as they do not contain more than the 0.3% delta-9 THC threshold allowed under federal law.

The attorneys and HIA did note that while delta-8 THC “appears to be safe” some of the products which may contain “adulterants, contaminants, or other toxins” may be unsafe.

“The HIA believes that the hemp industry should take a strong stance against unsafe delta-8 THC production methods and products,” the attorneys wrote.

In June, a Leafreport study found 53% of delta-8 products contained delta-9 THC over federal legal limits while 68% of the products contained less delta-8 than advertised.