CBD, Delta-8 THC, and Delta-9 THC in SC: What’s the Difference?

What’s the difference between CDB (cannabidiol), Delta-8 THC, and Delta-9 THC?

There has been debate over the legality of CBD in South Carolina for years. in recent years, this debate has expanded to include questions over the legality of Delta-8 THC products like Delta-8 gummies, and now we are starting to see Delta-9 products on the shelf in some stores…

In South Carolina, where police are still taking people to jail for simple possession of marijuana, these definitions matter – will you be arrested if you are caught with Delta-8 THC? Will your store be closed down for selling Delta-9 products?

In this article, we will provide definitions for these terms and explore what’s legal and what’s not, including:

  • The difference between CBD, Delta-8, and Delta-9 THC,
  • Whether CBD is legal in SC,
  • Whether Delta-8 is legal in SC, and
  • Whether Delta-9 is legal in SC.

Is CBD (Cannabidiol) Legal in SC?

CBD, or cannabidiol, is legal under SC law.

Although it has not been approved by the FDA for the many purposes for which it is being marketed, it is available in many forms online and in stores in Myrtle Beach and the surrounding area, including CBD oil, extracts, liquid, capsules, CBD-infused food health, and beauty products, and even smokable CBD.

What is CBD?

CBD is a chemical that is found in marijuana plants that many people claim has multiple medical uses including treatment for epilepsy, Parkinson’s disease, schizophrenia, diabetes, multiple sclerosis, anxiety, and even cancer.

The effectiveness of CBD as a treatment for most of these conditions has not been established, research has been limited, and the FDA has not approved CBD to be marketed as a treatment for most of these conditions.

CBD is not marijuana, CBD is not THC (tetrahydrocannabinol) (the primary psychoactive ingredient in marijuana that gets people high), and CBD does not cause intoxication like its cousin THC.

What is the Definition of Marijuana in SC?

We know that CBD is legal under SC law because 1) no SC law makes CBD illegal and 2) CBD is specifically excluded from the definition of marijuana in SC’s controlled substance laws.

SC Code § 44-53-110(a) defines marijuana as:

(i) all species or variety of the marijuana plant and all parts thereof whether growing or not;

(ii) the seeds of the marijuana plant;

(iii) the resin extracted from any part of the marijuana plant; or

(iv) every compound, manufacture, salt, derivative, mixture, or preparation of the marijuana plant, marijuana seeds, or marijuana resin.

SC Code § 44-53-110(b) goes on to define what is not marijuana, excluding hemp products made from hemp stalk fibers and cannabidiol derived from either seeds or stalks:

(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

Hemp products and CBD have never been illegal under this version of SC’s drug laws, but THC is illegal in SC.

When hemp products or CBD products contain THC (and most do), they cannot contain more than .3 % THC. The federal 2018 Farm Bill and the 2019 SC Hemp Farming Act define industrial hemp as containing no more than .3 percent THC on a dry weight basis – any THC content greater than this is technically illegal under SC law.

Is Delta-8 THC Legal in SC?

Delta-8 THC is a bit more problematic, and it is probably not legal under SC law.

Yes, yes, there are hundreds of websites proclaiming that Delta-8 THC Is legal. Most of these are articles written by or for companies who are selling Delta-8 products or people who are using Delta-8 products, they are not written by attorneys, and their reasoning is based more on wishful thinking than any sound legal analysis.

The most common reasoning given to support the legality of Delta-8 THC is:

  1. The federal and state Hemp Farming Acts define hemp as marijuana plants containing no more than .3% Delta-9 THC.
  2. The Hemp Farming Acts do not mention Delta-8 THC.
  3. Therefore, this is a “loophole” that makes Delta-8 THC legal.

The problem with this reasoning is that the failure of the Hemp Farming Acts to mention Delta-8 THC does not make it legal.

44-53-110 specifically excludes CBD from the definition of marijuana, but it does not exclude Delta-8 THC (or any THC) from the definition of marijuana.

This means that Delta-8 THC, which is 1) a part of the marijuana plant and 2) a ”compound, manufacture, salt, derivative, mixture, or preparation of the marijuana plant, marijuana seeds, or marijuana resin,” is included in the definition of marijuana, which is illegal under SC Code § 44-53-370.

Furthermore, THC is included in SC Code § 44-53-190(D)(18) as a Schedule I controlled substance, and it references “Tetrahydrocannabinol” without specifying Delta-9 or Delta-8.

This means that THC – regardless of the type – is illegal under SC law except for hemp products that fall within the definitions of the Hemp Farming Acts and contain less than .3% Delta-9 THC.

Is Delta-9 THC Legal in SC?

Some stores are now selling Delta-9 THC products – online and even in person. Is that legal?

Their argument is:

  1. The federal and state Hemp Farming Acts define hemp as marijuana plants containing no more than .3% Delta-9 THC.
  2. Their products contain less than .3% THC derived from industrial hemp plants.
  3. Therefore, this is a “loophole” that makes Delta-9 THC legal.

Assuming the product truly contains less than .3% THC that is taken from hemp, this is an open question that depends on your interpretation of the language of the Hemp Farming Acts and SC’s drug laws.

Is a Delta-9 product that contains less than .3% Delta-9 THC legal? Maybe…

Any product that contains more than .3% Delta-9 THC is most likely illegal, though, and any product that contains any amount of Delta-8 THC is most likely illegal under SC law.

Are People Being Arrested for Delta-8 or Delta-9 THC in SC?

No one is being arrested for CBD products, but SLED has announced that they would test CBD products to determine whether the THC content is below the .3% threshold.

For now, law enforcement in SC seems to be taking a “wait and see” approach to Delta-8 and Delta-9 THC products, but be aware that they can and might start making arrests – this is very much an open question in SC, and the only way to avoid risk is to wait for SC to change our marijuana laws before using or selling Delta-8 or Delta-9 THC products.

Questions About CBD, Delta-8, or Delta-9 THC?

Myrtle Beach criminal defense lawyer Daniel Selwa has extensive experience defending clients accused of drug crimes including marijuana offenses, simple possession, possession with intent to distribute, distribution, and drug trafficking.

If you have been charged with a crime in SC or believe you are under investigation, call now at (854) 854-6650 or send us a message through our website to talk with an attorney today.

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