South Carolina Bill Would Tax, Regulate Delta-8 THC

The delta-8 THC market is bigger than ever before, regulated like hemp, but South Carolina could change that if one proposal takes root.

Rep. Rosalyn Henderson-Myers (D-Spartanburg) filed a bill under South Carolina’s upcoming legislative session that seeks to create regulations around delta-8 THC and similar products, which can be sold anywhere that hemp products are sold.

H. 4628 was prefiled in the South Carolina House Nov. 16, and referred to the Committee on Medical, Military, Public and Municipal Affairs.

The bill would create a set of new rules for the production and sale of delta-8 THC and other Under the proposal, only adults 21 years and older could purchase those types of products.

The bill would also establish a tax at the retail level, imposing a 5% sales tax. The tax revenue would be allocated towards regulating the industry, according to the bill.

Producers and retailers would be licensed by the state, and any hemp-derived cannabinoid product produced or sold in the state must be tested for pesticides and toxins and to ensure it contains only the legal amount of delta-9 THC.

The license would be in addition to other required business licensing. The annual licensing fee would be $500 for producers and $250 for retailers, according to the prefiled bill draft.

Products would also have to have a variety of safety labeling and be contained in child-resistant packaging.

“These products are not controlled substances in South Carolina. So the quote-unquote enforcement that we’re seeing is a misguided view of the existing law,” North Carolina-based hemp attorney Rod Kight told The State. “That’s why I think it’s important that a bill like this gets passed so it’s absolutely and unambiguously clear.”

 Despite warnings from law enforcement that the products are considered illegal in the state.

Kight provides services to hemp businesses and due to the rapidly changing legal landscape around hemp. Mike Sims, one of his clients, was subject to the murky laws surrounding hemp. Sims’ store in Columbia, South Carolina, Crowntown Cannabis was raided last January when police said he was selling marijuana.

Kight clarified, however, that Sims’ store was selling hemp-derived products, not marijuana.

Confusion about what constitutes hot hemp is also an issue in South Carolina.

Law firm Collins and Lacy reports that recently, the Columbia Police Department (CPD) sent letters to over 30  retailers in the city informing them that delta-8 THC is an illegal substance. CPD is likely following the South Carolina Attorney General’s Oct.4, 2021 opinion that delta-8 is an illegal substance.

Per state law, 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.

Defining Delta-8 THC in South Carolina

The legal gray area is due to whether South Carolina’s Hemp Farming Act specifically outlaws delta-8 THC.

Delta-8 THC has seen a surge in popularity due to a legal loophole in federal regulations, the 2018 Farm Bill, that limits THC to 0.3% in hemp products but has no limit for delta-8 THC.

High Times reported on the significant differences between delta-8 and delta-9 THC. Researchers have known about it for decades. Roger Adams and a team of researchers at the University of Illinois were the first to report partial synthesis of delta-8 in 1941. It wasn’t until 1966, when Dr. Raphael Mechoulam and his colleague Dr. Yechiel Gaoni, achieved a total synthesis of delta-8 as part of their groundbreaking work at Hebrew University. In 2002, Dr. Mechoulam applied for a patent on the conversion of CBD into delta-8 and THC through various methods, which he received in 2008, and expired in 2022. 

Last year, a South Carolina farmer filed a lawsuit against the state over the destruction of his hemp crop in 2019.

The lawsuit was filed on Sept. 16, 2022 by John Trenton Pendarvis, and it alleges that a trio of state agencies––the South Carolina Law Enforcement Division, Department of Agriculture, and attorney general’s office––“all denied him due process after Department of Agriculture officials discovered unreported hemp crops during a check of his Dorchester County property on July 30, 2019,” according to the Associated Press.