THC 8 use in the Army

THC 8, or THC Delta 8, is a form of THC (marijuana) that is legal for Civilians.  It does have psychoactive effects, but they are typically less than that of THC or THC 9 (THC Delta 9).  THC 8 (THC Delta 8), is not a controlled substance and is not prohibited by Article 112a of the UCMJ. THC 8 use in the Army is, however, prohibited by AR 600-85, paragraph 4-2:

"The use of products made or derived from hemp (as defined in 7 USC. 1639o), including but not limited to cannabidol CBD, regardless of the product’s THC concentration (for example. THC–8), claimed or actual, and regardless of whether such product may lawfully be bought, sold, and used under the law applicable to civilians, is prohibited, regardless of the route of administration or use, subject to the exceptions below. Examples of products that are prohibited include, but are not limited to, the following: products that are injected, inhaled, or otherwise introduced into the human body; food products; transdermal patches, topical lotions and oils; soaps and shampoos; and other cosmetic products that are applied directly to the skin. This provision is punitive, and violations may be subject to punishment under Art. 92(1), UCMJ. Violations of this prohibition constitute a general intent offense..."

Regarding THC 8 use in the Army, paragraph 4-2 also states the following:

"This prohibition will not apply to use: (1) pursuant to legitimate law enforcement activities; (2) by authorized personnel in performance of medical duties; or (3) without knowledge that the product was made or derived from hemp, including CBD, where that lack of knowledge is honest and reasonable"

Essentially, this means that knowing THC 8 (THC Delta 8) use in the Army is prohibited; however, unknowing use, as long as that lack of knowledge is honest and reasonable, is not prohibited.  The regulation does not define reasonableness; however, all circumstances of the use must be evaluated. For example, if someone eats a normal looking product, not knowing it contained any THC 8 (THC Delta 9), it would be a reasonable unknowing use. An example of unreasonable unknowing use would be eating brownies or chips that were out at a house-party, separate from other snacks, labeled with "special brownies" or "special chips," with individuals present who were known to be THC users.  That said, every situation is different.

THC 8 (THC Delta 8) can be in many forms. Some examples include:

• Vapes
• Gummies
• Chips
• Drinks (i.e. Seltzers)
• Other types of Candy
• Brownies
• Cookies

These products are often not properly labeled AND mimic popular snack foods - this has resulted in several FDA warnings. For example, the following common products can be made with THC 8 (THC Delta 8): Doritos, Ruffles, Trolli Gummies, Oreos, Life Savers, and more (example photos shown at this link)

THC 8 use in the Army is tested through the normal urinalysis (UA) process - the cutoff for a positive test, much like with THC and THC 9, is 15 ng/ml.

After a positive drug test for THC 8 (THC Delta 8), a Soldier will be flagged.  Additionally, most Commands will issue a Field Grade Article 15. Importantly, Article 112a is not the right charge for the Article 15 - instead, it is Article 92, which is violation of a regulation (AR 600-85).  Additionally, while unlikely, a GOMOR could be issued.  Finally, after a test showing THC 8 use in the Army, separation (enlisted) or elimination (officers) will be initiated (only initiated - due process must be given and Soldiers/Officers in these situations can be retained, especially with good legal representation).

Many Soldiers who test positive for THC 8 use in the Army have no idea what happened and have never heard of THC 8 before.  A strong defense can safe a Soldiers career. Not only will a lawyer need to provide legal analysis to the imposing Commander/Separation Board, but he/she will also have to educate the Commander/Separation Board about what THC 8 (THC Delta 8) is, how it can be consumed, what types of products it can be in, and how it can easily be unknowingly consumed. Furthermore, it is helpful to corroborate, with additional evidence, how the Soldier in question unknowingly used THC 8 (THC Delta 8).

Trial Defense Services (TDS) is available for assistance; however, they are typically inexperienced and overworked. Furthermore, they may have little to no knowledge about what THC 8 (THC Delta 8) is and therefore cannot present a complete defense. Soldiers can hire civilian counsel, allowing him/her to chose an experienced military lawyer with good former client reviews.

This Article was written by Attorney Matthew Barry. Attorney Barry is highly rated by former clients and has a proven track record of success. He has also dealt extensively with THC 8 (THC Delta 8) cases in the Army.

The Law Office of Matthew Barry represents Servicemembers and Veterans worldwide. He has offices on the East Coast, West Coast, and in the Central U.S.

Contact us today for a free consultation to start building your Defense