South Carolina Attorney General’s Office Takes Aim at Delta-8 THC

Last week, the South Carolina Office of Attorney General released an opinion concluding that products containing delta-8 tetrahydrocannabinol (delta-8 THC) are illegal controlled substances. The opinion, which is a statement of the official position of the Office of the Attorney General and not controlling law, was issued in response to a request for clarification from South Carolina Law Enforcement Division (SLED). While limited in application to South Carolina, stakeholders in the hemp industry need to take careful note, especially if this signals a spreading trend to other states where marijuana remains illegal and there is uncertainty whether delta-8 THC is permissible under hemp exceptions to existing statutes otherwise prohibiting marijuana and tetrahydrocannabinols.

Following federal legalization of hemp in 2018, SLED has generally been aggressive towards the industry, so the Attorney General’s opinion supporting prohibition of delta-8 THC – a conclusion already reached by SLED – should not be surprising. Delta-8 THC has been an emerging product within the hemp industry popular because of its psychoactive effect, however, its legality has been subject to debate despite widespread prevalence. The opinion from the SC Attorney General’s Office analyzes the interplay between both federal law and state law as it pertains to controlled substances and exceptions for hemp and hemp derivative products. The conclusion reached by the South Carolina AG supports the DEA’s August 2020 interim final rule determining that synthetically derived tetrahydrocannabinols remain schedule I controlled substances.

The opinion letter from the SC Attorney General’s Office admits that a good faith argument can be made in support of the legality of delta-8 THC. Additionally, the letter indicates that information was sought from hemp industry representatives and summarizes the argument for delta-8 THC’s permissibility pointing to the existing gaps in the law and need for legislative clarification. Ultimately, the letter concludes that, if challenged, a court would likely reject these contentions and find that delta-8 THC products are impermissible. However, until that happens, or applicable statutes are modified, delta-8 THC remains in an undefined gray area, especially in States where law enforcement has been silent. Extreme caution is recommended because, despite the uncertainty, both SLED and the SC Attorney General have now gone on record stating that delta-8 THC is illegal, and theoretical legal arguments are unlikely to prevent arrest and prosecution in South Carolina.

Although limited in scope to South Carolina, those in the hemp industry would be wise to pay attention. States like North Carolina, where marijuana and tetrahydrocannabinols remain controlled substances, may find themselves in similar situations if law enforcement seeks to stamp out the processing and retail of delta-8 THC containing products. Additionally, companies that do business in South Carolina or even transport product through the state will want to take protective measures to ensure that they are not subject to criminal prosecution and/or seizure of product. Due to the extreme risk and constantly evolving legal framework, working closely with experienced counsel is highly recommended.