An Update on Delta-8 in South Carolina

Recently, the Columbia Police Department sent letters to more than thirty retailers in the City informing them that delta-8 THC is an illegal substance. CPD appears to be following the South Carolina Attorney General’s October 4, 2021 Opinion that delta-8 is an illegal substance.  This presents a good opportunity for us to revisit our previous article to provide an update on the continued debate over the legality of delta-8, and identify potential pitfalls associated with the sale of products containing delta-8 in a retail environment.

The manufacture, distribution, and possession of a Schedule I drug is illegal and carries penalties ranging from imprisonment of up to six months and/or a fine up to $1,000 for a first offense for simple possession to imprisonment of five to twenty years and/or a fine up to $20,000 for a third or subsequent offense of manufacturing or distribution.  S.C. Code §§ 44-53-370(b)(2) & (d)(2).  “[U]nless specifically excepted”, “Tetrahydrocannabinol (THC)” of any kind is listed as a Schedule I drug, separate and apart from marijuana.  S.C. Code § 44-53-190(D)(18).  Therefore, the manufacture, distribution, and/or possession of any form of THC, including delta-8, would be illegal, “unless specifically excepted” by some other statute.

The question then is whether South Carolina’s Hemp Farming Act specifically excepts delta-8 from the definition of a Schedule I drug.

The Hemp Farming Act legalizes “industrial hemp”, defined as a marijuana plant with 0.3% delta-9 THC or less and “any part of that plant, including . . . all derivatives, extracts, [and] cannabinoids”.  S.C. Code § 46-55-10(8).  Delta-8 is a cannabinoid that commercial manufacturers are extracting from legal industrial hemp.  Proponents of delta-8 argue that delta-8 extracted from industrial hemp is included within the definition of industrial hemp and is therefore exempted by the definition of a Schedule I drug.

The SCAG’s Office opines that only substances with “a delta-9 THC concentration of not more than 0.3 percent on a dry weight basis” are specifically exempted.  Essentially, the SCAG’s Office believes that the Hemp Farming Act is not specific enough to exempt delta-8 derived/extracted from industrial hemp from the definition of a Schedule I drug.  The SCAG’s Office further points out that the Hemp Farming Act specifically states that it “do[es] not apply to the possession, handling, transport, or sale of hemp products and extracts, including those containing hemp-derived cannabinoids, including CBD.  Nothing in this chapter authorizes any person to violate any federal or state law or regulation.”  S.C. Code § 46-55-30.  Nevertheless, the SCAG’s Office does admit that the arguments in favor of the legality of delta-8 are arguments “a serious stakeholder can make in good faith, as a result of some of the gaps in the Hemp Farming Act.”

Consequently, the legality of delta-8 in South Carolina remains something of an open question and will remain so until such time as the legislature or the judiciary takes action.  With more law enforcement agencies joining the position that delta-8 is illegal, there is the very real possibility that one or more of these law enforcement agencies will take action in the very near future, which may result in the seizure of products containing delta-8 and the filing of criminal charges.  We expect that any such actions will likely cause our courts to review and rule on the legality of delta-8.  We must again stress that any business owner considering selling delta-8 products consult with an attorney with experience in retail and hospitality law to minimize their risk of exposure to civil or even criminal liability.