What is Delta 9 THC?
Delta 9 THC, often simply referred to as THC, is a chemical compound found in the Cannabis sativa plant. As a key psychoactive ingredient in marijuana, it is responsible for most of the plant’s psychological effects. Delta 9 THC is one of over 100 cannabinoids in the cannabis plant and one of the two primary compounds responsible for its characteristic "high" feeling. This compound chemically mimics the natural neurotransmitter anandamide, which is associated with learning, memory, and pain regulation. In addition to most recreational and medicinal cannabis products, Delta 9 THC is most commonly used in a variety of edible foods and beverages. While it is most notable for inducing feelings of euphoria, Delta 9 THC also has other beneficial effects, such as reducing anxiety and depression, providing analgesic effects, increasing appetite, improving sleep , and reducing nausea and vomiting.
Delta 9 THC is sometimes equated with medical marijuana or marijuana in general, and while their effects and uses are largely the same, there are significant differences. Most notably, Delta 9 THC can be derived from other cannabinoids and, due to recent legislative changes, can now be extracted from hemp rather than marijuana. Furthermore, not all cannabis plants contain significant amounts of D9 THC-up to 95% of marijuana plants are actually dominated by Delta 8 THC instead of D9. Delta 9 THC is not the only cannabinoid, nor is it necessarily the more potent version of Delta 8 THC. Depending on the desired effect, each THC variant has its ideal applications. For example, both Delta 8 THC and Delta 9 THC can make users feel euphoric and relaxed-the former usually to a milder extent when compared to the latter.
Present Legality of Delta 9 in West Virginia
The current legal status of Delta 9 tetrahydrocannabinol ("Delta 9 THC") in West Virginia is somewhat confusing due to the patchwork of state and federal legislation addressing tetrahydrocannabinols ("THCs"). Traditionally, all THCs (the "basket" approach) were treated as a Controlled Dangerous Substance – Schedule I or II narcotics. On April 12, 2021, the West Virginia legislature passed HB 2561 (the "Bill") which excluded hemp derived cannabinoids that are naturally present in concentrations not more than 0.3% tetrahydrocannabinol expressed on a dry weight basis. The Bill was signed into law by Governor Justice on April 27, 2021 and became known as West Virginia Code § 60A-4-401(c) (the "Statute").
It remains to be seen how the Bill will be applied, however, it does appear that THCs derived from combustible hemp products may be legal if they do not contain more than 0.3% total delta-9 tetrahydrocannabinol on a dry weight basis. It remains unclear whether the .3% threshold relates to both the hemp and the separated delta-9 THC constituent. THCs could be unlawfully prohibited unless providers develop lab testing services that isolate the constituent from the hemp. It should also be noted that the Bill does not address the derivative approach, whereby THCs are created chemically from hemp.
Federal vs. State Delta 9 Laws
While marijuana remains classified as a Schedule I drug under the federal Controlled Substances Act, the Agriculture Improvement Act of 2018 (aka the "Farm Bill") legalized hemp and hemp products. This bill specifically lifted restrictions on many hemp-derived CBD products that are low in THC. This bill also became the first major federal legislation to define hemp as cannabis and its derivates containing less than 0.3% delta-9-tetrahydrocannabinol (THC). As a result, the 2018 Farm Bill legalized a wide range of hemp-derived cannabinoids that include CBD, CBG, CBN, and others.
There is also another federal position on THC derived from the cannabis plant. The FDA issued a statement that states: "Although the [Federal Food, Drug and Cosmetic] Act (FDCA) does not explicitly require that the marijuana from which a product is derived … contain less than 0.3 percent (dry weight) delta-9 THC, FDA believes that, at this time, products that exceed that delta-9 THC level are excluded from the statutory definition of hemp. Thus, the FDCA applies to these products. For example, FDA would consider a product derived from hemp that contains greater than 0.3 percent delta-9 THC on a dry weight basis to be a schedule I controlled substance under the [Controlled Substance Act (CSA)] and, therefore, unlawful to introduce into interstate commerce."
It is important to understand that there are two separate THC definitions that currently exist at the federal level. The 2018 Farm Bill allows the regulated production, sale, and transport of low-THC industrial hemp and says that products derived from hemp will be legal if they contain less than 0.3% Delta 9 THC. Conversely, the FDA’s position is that anything exceeding 0.3% Delta 9 THC is still considered a Schedule I drug that is illegal to introduce into interstate commerce. Until the FDA, Congress and/or other federal legislative bodies act, there is a raw conflict in federal regulatory cannabis law. West Virginia acts in accordance with the 2018 Farm Bill and does not implement the more restrictive FDA position. So, in West Virginia THC levels of up to 0.3% have been lawfully produced, sold, distributed, manufactured, marketed, processed, and consumed. In passing House Bill 2498 (and other states) have also removed hemp-derived CBD from its Schedule 1 substances list. As such, at the state level, the Agriculture Improvement Act of 2018 legalized industrial hemp for the production of CBD products derived from hemp so long as state laws and regulations are complied with.
Consequences for Illegal Possession or Use
The legal consequences for either possessing or using Delta 9 THC in West Virginia are significant. First and foremost, one must remember that in West Virginia, marijuana itself remains illegal for all purposes. This means that if you are stopped for a traffic violation and the police officer finds marijuana, you could be charged with possession of marijuana and face steep criminal penalties.
In short, if you are caught with less than 15 grams of marijuana, you will be charged with a misdemeanor and face a maximum fine of $100.00 plus court costs. If the amount is between 15 grams and 100 grams, you are also charged with a misdemeanor but you face a maximum fine $500.00 plus Court costs and a possible period of incarceration of up to 6 months.
If the amount is between 100 grams and 1,000 grams, you can be charged with a felony and face a fine of $1,000.00 to $5,000 . 00 plus court costs, and up to 1 year in jail. Between 1,000 grams and 5,000 grams is a 1-5 year felony with a maximum fine between $2,500.00 and $25,000.00. Between 5,000 grams and 10,000 grams is a 2-10 year felony with a maximum fine between $5,000.00 and $50,000.00. Between 10,000 grams and 1,000,000 grams is a 3-15 year felony with a $25,000-$100,000.00 fine.
If the quantity is more than 1,000,000 grams, that’s a 15 to 25 year felony with a $50,000.00 to $200,000.00 fine.
West Virginia Code 60A-4-401(k) is the statutory section that sets out these penalties. This Code section also covers the penalties for the illegal use of Delta 9 THC and other controlled substances. If you are convicted of using any other Controlled Substance or Delta 9 THC, the penalty would be the same as if you had possessed that substance in addition to any other penalties the Court may impose for that use.
Expectations for Delta 9 THC Law Reform in West Virginia
The future of Delta 9 THC laws in West Virginia remains uncertain, but the state’s medical cannabis laws could pave the way for broader legalization efforts in the future. As public opinion continues to shift in favor of legal recreational marijuana, particularly among younger voters, it remains possible that future legislative bodies will move to decriminalize and regulate Delta 9 THC as adult use products.
Recent polls indicate a majority of West Virginians support legalizing recreational marijuana, which would place the state among the growing list of states that have already taken this step. A November 2020 poll found 65% of registered voters supported legalizing marijuana, but only 36% supported taxing and regulating marijuana like alcohol—a measure requiring more public buy-in. An even earlier poll found that 61% of voters supported the legalization of marijuana for medical and recreational purposes.
The current political landscape may eventually lead to legislation that explicitly permits adult use. In 2020, a broadly conservative West Virginia legislature legalized the production and use of medical cannabis (West Virginia Code § 16A-5-101 et seq.). Since that law went into effect, there have been indications that the legislature is open to expanding the scope of these laws.
In March 2021, four Republican lawmakers introduced Senate Bill 651, which would amend permitting requirements for medical cannabis growers and processors, and would allow ASA (acetylated anandamide) as a processing solvent. While this amendment would not change the law’s application to non-medical use, the fact that a Republican majority is exploring amendments to bring the law in line with evolving uses for cannabis-derived products indicates that the law may be amended to legalize adult use by permit holders in the near future.
The 2021 legislature, however, fell along party lines as efforts stalled to pass the bellwether bill on legal marijuana in Pennsylvania (West Virginia’s neighbor state). The bills to legalize adult-use cannabis fell short in both chambers. Given that West Virginia’s nearest neighbors Virginia, Pennsylvania, and Kentucky have not taken this step, the state may not be a first mover, and may follow these states in their approach to legalize this substance.
How to Safely and Legally Buy Delta 9
Historically, the only place for West Virginians to purchase Delta 9 THC legally was through a licensed, state-registered physician in a state-sanctioned dispensary after establishing why it was necessary. However, starting July 1, 2022, West Virginia marijuana regulations allowed patients to have a one-to-three month supply, with certification from their physician .
Since July 2022, like many states, Delta 9 THC can also be purchased online or at convenience stores and smoke shops, thereby giving consumers access to products that have been tested and verified for safety and regulation. As with any state, however, not all products are made equal. Reputable online sellers and stores will be backed by the National Cannabis Industry Association and have positive reviews online.