Delta-8 & TN Cannabis Laws
While Tennessee sits on the sidelines of marijuana legalization, Tennesseans are choosing Delta-8, a psychoactive cannabis product nearly identical to marijuana. The two are isomers—chemical compounds with the same formula but different atomic arrangements—that offer similar mental effects with medicinal and recreational applications.
Since legalizing CBD oil in 2015, the Tennessee state legislature has failed to pass any laws legalizing medical or recreational cannabis. Tennessee has become a national outlier, one of five states in which marijuana is not legal for any purpose, not decriminalized, and potentially a felony. The state continues to widely enforce consequences for possession, reporting 30,781 marijuana-related arrests in 2019. Meanwhile, neighbors like South Carolina and Alabama are poised to legalize medical marijuana this year. Mississippi did it last November. While Tennessee stalls, residents turn to alternatives.
Since the 2018 Farm Bill clarified its legal status, Delta-8 has become increasingly available over-the-counter at cannabis retailers across the state. It has one main selling point: benefits similar to marijuana not found in CBD. Like marijuana, which is also known as Delta-9, Delta-8 contains tetrahydrocannabinol (THC).
Like CBD, no oversight body regulates dosages or screens for additives. While the presence of THC in Delta-8 gives users unique benefits not found on the legal market in Tennessee, it also means Delta-8 is indistinguishable from marijuana use on a drug test. Despite the tricky gray area, Delta-8 demand has ballooned over the last year and now dominates the state’s legal cannabis market.
“It’s changed our business completely,” said Collin Bercier, who runs Ounce of Hope in Memphis. “Delta-8, specifically the gummies and now our chocolates, are flying off the shelves.” For some customers, Delta-8 provides focus and energy. For others, it’s a sleep aid or a pain reliever. Bercier has regulars who have stopped using illegal marijuana completely because of how well Delta-8 meets their needs. Since Bercier first started carrying Delta-8 products about six months ago, it has been Ounce of Hope’s best seller by far. “We literally cannot keep it in the store.”
In Kingsport, Alec Stallings, an employee at The Laboratory in Kingsport reported similarly high demand: “Delta-8 has been shooting off the shelves left and right. The medicinal effects from the dosages are very apparent once you try them.”
“It’s taken off, quite significantly,” said Jackson Campbell, founder and owner of Perfect Plant in Nashville, which started carrying Delta-8 last summer. Since Delta-8 is derived from hemp and undergoes chemical and lab processing, Perfect Plant requires products to pass full-panel testing that checks for heavy metals, pesticides, mycotoxins, mold, and residual solvents. “We were still a little late to the game because we always say ‘buyer beware’ with Delta 8, it’s a super unregulated industry. It’s the gold rush into a new market that’s just busted wide open.”
Like marijuana, Delta-8 binds to cannabinoid receptors in the brain. This leads to the “head change” that Campbell cites as a selling point and a key distinction between Delta-8 and CBD. “Delta-8 is shown to behave in our bodies much like Delta-9,” said Campbell. “It’s going to give you an intoxicating effect. It’s got a really euphoric body high and it’s also great for creativity and stimulation.”
Burton, a 30-year-old Nashville resident, takes the manufacturer-recommended dosage of two or three puffs of Delta-8 from a vaporizer a few days a week. It helps treat his anxiety. He recently switched from marijuana to Delta-8, which he prefers. “It’s harder to get specific strains when you’re trying to get the stuff that’s not legal in Tennessee. You just get what you can get,” said Burton. “With Delta-8, you can go in and actually buy it, so you can buy stuff that’s targeted specifically to what you’re wanting. That’s been really great.”
He used another common intoxicant to explain the difference: “if people want to go out and party-drink, that’s kind of like doing Delta 9,” said Burton, “Some people just want a drink at the end of the day, one drink—that to me is kind of like Delta-8. It relaxes you a little bit, but it’s not as much of a commitment.” He refers to Delta-8 as ‘weed light.’
Burton asked to be identified by his first name only because of potential professional ramifications, a function of the legal gray area of Delta-8. Though it’s legal to buy, sell, and consume, it triggers a drug test like marijuana. “If [my employer] reads this article and decides to drug test me, Delta-8 may come up on a drug test as THC and at that point I would fail,” said Burton.
The inability of a drug test to differentiate between legal Delta-8 and illegal Delta-9 reveals the double standard between THC and alcohol use. “You don’t have to go do alcohol tests for your job. You’re not expected to go in drunk, which is fair,” said Burton. “But you don’t see employers dictating that people can’t drink after hours.”
Besides not knowing how THC was consumed, tests can’t tell when or where: In Colorado or in Tennessee? Ten minutes ago, or six weeks? “Our ability to even reliably ascertain who is impaired is very limited and rudimentary. It’s nothing like blood alcohol,” said Steve Dickerson, a doctor and long time advocate for medical marijuana in the Tennessee State Senate. He had not heard of Delta-8.
In cannabis policy, one tiny number matters more than anything: 0.3%. This threshold is not based on potential for abuse and is widely recognized as arbitrary, originating from a scientific paper published in 1976. If a cannabis plant’s THC concentration breaks 0.3%, it’s considered illegal marijuana. Below that line, the same exact plant is legal in “all derivatives, extracts, cannabinoids, isomers, acids, salts, and salt isomers” per the 2018 Farm Bill passed by the federal government. The breadth and scope of this paragraph effectively legalized Delta-8 as long as it comes from a legal hemp plant. Over the last two years, cannabis labs began deriving Delta-8 from legal hemp and making it available to retailers.
Burton sees Delta-8 as a chance to legally experience a substance that has been maligned and mischaracterized for decades. “I used to have that stigma, I used to think it was all ‘potheads’ and all that stuff. I had been drinking the Kool-Aid of anti-marijuana. Now that I’ve tried it, I can actually see the benefits of it.”
Another cannabis convert is carrying policy for medical marijuana in the Tennessee State Senate.
Sen. Janice Bowling, a Republican from Tullahoma, manages chronic headaches with a daily dose of CBD oil. She considers it a safer, more effective alternative to manufactured pharmaceuticals like ibuprofen. “I started taking five drops of CBD oil in water and my headaches have gone away. It’s a godsend.”
"Now there are 38 states with medical cannabis programs and five states that have just legalized it. Tennessee is terribly behind." – Sen. Janice Bowling, R-Tullahoma, who manages chronic headaches with CBD oil.
Bowling is unfamiliar with Delta-8 but knows constituents and friends who have used marijuana as an effective and affordable alternative to pharmaceuticals. She sees Tennessee’s lack of cannabis policy as an embarrassing denial of essential healthcare.
“Now there are 38 states with medical cannabis programs and five states that have just legalized it. Tennessee is terribly behind.” said Bowling, who has historically opposed healthcare expansion and voted for Medicaid block grants last month. “We don’t need to lag at the expense of tens, if not hundreds of thousands of Tennesseans who desperately need safe and affordable access.”
Bowling’s arguments for legal cannabis rest on its overwhelming popularity and the carnage inflicted on Tennessee by opioids—legal for doctors to prescribe, brutally addictive, and intensely profitable for pharmaceutical giants like Purdue.
“Tennesseans know it’s a healthier, safer option to the Big Pharma that are coming into our state now,” said Bowling. She quoted statewide support for medical marijuana at 82%. The Marijuana Policy Project puts it at 81%.
Her own attitude changed after reading studies by leading cannabis scientist Raphael Mechoulam and using CBD herself. When asked why marijuana is illegal in the first place, she cites misinformation and profit-seeking pharmaceutical interests. “There’s been a lot of urban legends. A lot of them started with former president Nixon. Marijuana is not a gateway drug,” said Bowling. When it created the DEA in 1973, the Nixon Administration listed marijuana as a Schedule 1 drug, the strictest classification, alongside heroin, Quaaludes, and Bath Salts, and above cocaine (crack and powder), adderall and oxycodone (all schedule 2).“The implications and applications of medical cannabis are so incredible—you can’t copyright a God-made product. [Pharmaceutical Companies] couldn’t patent the components.”
Cole Ebel opened Cumberland Cannabis Co. in 2018 after fourteen years in the pharmaceutical industry. “We weren’t working for patients, we weren’t working for healthcare, we were working for stockholders,” said Ebel. “That’s why I transitioned.”
A military veteran, Ebel spoke at length about how cannabis products provide the public, especially veterans, help with anxiety, depression, sleep, and PTSD.
“I have people who come in here, they’ve been on Benzos (benzodiazepine) for 20 years—done with them. It’s saving lives. That’s not just Delta-8, that’s CBD too,” said Ebel.
Cumberland Cannabis Co. started carrying Delta-8 about six months ago. Now, Ebel estimates Delta-8 accounts for nearly all of their sales.
Sen. Ferrell Haile, R-Gallatin, a pharmacist, is currently sponsoring an alternative medical marijuana bill that would leave much of the regulatory and oversight decision-making to a medical cannabis board. Bowling and Haile follow Dickerson, who was defeated in November by Democrat Heidi Campbell.
Dickerson saw his two biggest opponents as law enforcement and a generational divide. State and local law enforcement maintained that it was a gateway drug and would lead to more car accidents and traffic fatalities, a claim refuted by evidence in states that have already legalized marijuana. In the state house, older lawmakers are more likely to oppose marijuana policy while younger lawmakers support it almost unanimously.
“As people age out, there are fewer and fewer people where the opposition is ingrained,” said Dickerson, “As they’re replaced by younger people, it’s just a given that they support it.”
According to both Bowling and Dickerson, policy at the federal level would help move cannabis policy in Tennessee. Both agree that full federal legalization will come before Tennessee allows recreational use.
Campbell, at Perfect Plant, is watching the MORE Act, which passed the House in December and will likely pass again this Congress before it faces the Senate (and the filibuster). The MORE Act would legalize cannabis at the federal level and expunge marijuana-related federal offenses from criminal records.
"As people age out, there are fewer and fewer people where the opposition is ingrained. As they're replaced by young people, it's just a given that they support it." – Dr. Steve Dickerson, a former state senator who advocated for legalization of medical marijuana.
While it lags behind on cannabis policy, Tennessee is among the most punitive states in the country for individuals caught with marijuana. The state has arrested 573,045 people for marijuana-related offenses since 2000 according to the Tennessee Bureau of Investigation’s public reports. These numbers have risen steadily year to year and affect Black Tennesseans—41% of those arrested versus 17% of the general population—far more than any other racial demographic.
While local jurisdictions like Memphis and Nashville have tried to lessen penalties with municipal action, the ultimate power lies with the state, which successfully stopped both efforts. Nashville District Attorney Glenn Funk announced last July he would simply stop prosecuting minor marijuana offenses amid pushback from the Metro Nashville Police Department. Bowling doesn’t know anyone who has been imprisoned for marijuana and acknowledges marijuana’s impact on incarceration with a $2 million cost reduction for the Tennessee Department of Corrections.
While Delta-9 could lead to arrest or imprisonment, Delta-8 provides Tennesseans with a legal, widely available cannabis option with similar psychological and physical benefits. Despite its legality and widespread use, users and retailers are hesitant to draw attention to themselves or speak publicly about it. Many conflate Delta-8 use with the decades-long stigma surrounding marijuana or worry that it’s indistinguishable from illegal marijuana on a drug test. These gray areas result when cannabis policy remains a confusing overlap of state, local, and federal laws that struggle to protect low-THC hemp while keeping marijuana illegal.
As it stalls in the state house, marijuana legalization is sweeping the nation and the South.
“One thing that’s going to help all of our cause, with ending prohibition here in Tennessee and overall, is being responsible users of something like Delta-8,” said Campbell, sitting in his Germantown store a half-mile from the Capitol. “The cat’s out the bag. I can see some pushback but the overall trend is towards the end of prohibition.”