Although Delta-8 products can be found readily available for purchase at convenience stores and smoke shops, the legality of the substance varies greatly state to state. Further complicating matters, the Agriculture Improvement Act of 2018 legalized hemp-derived products, including Delta-8, at the federal level. Hemp products like Delta-8 are supposed to contain THC levels of less than 0.3%, so hemp and its byproducts were removed from the list of Controlled Substances. The FDA, however, does not determine or certify THC concentration of commercial hemp products and the production of Delta-8 in labs can result in impurities like increased concentration of THC. As a result, users could test positive for THC in routine military drug testing. As such, the Department of Defense directed the military services to issue regulations prohibiting active duty and Reserve component service members from using products made of or derived from hemp. Since then, the services have all weighed in and specifically banned products containing this substance. Army Regulation 600-85, 4-2(9)(a) prohibits the use of all products made or derived from hemp as of July 2020. Similarly, the Secretary of the Navy issued ALNAV 074/20 in July 2020 prohibiting the use of products made or derived from hemp, even where such use was lawful for civilians. The Coast Guard issued ALCOAST 308/20 in August 2020 prohibiting members from knowingly using hemp products. Finally, the Air Force prohibited the ingestion of Delta-8 products in the Department of Air Force Manual 44-197 ¶1.2.2.1. in September 2023. Use of Delta-8 violates these general orders, and is therefore a violation of Article 92 of the UCMJ.
Justyn Ann Baxley is a Partner with JAG Defense. Her practice primarily focuses on security clearance law and administrative law. As a security clearance lawyer, Ms. Baxley has represented hundreds of individuals in security clearance adjudications across virtually every federal agency, to include the Department of Defense, the Department of Homeland Security, the Department of Energy, the National Security Agency, NASA, and others.
