Is Delta-8 Legal? In what states you can buy Delta 8 legally?

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Currently, eighteen 18 states prohibit the sale of Delta-8 THC products, in addition to one  another state effectively banning the product as of August 1, 2021, one banning their general sale and subjecting them to regulation by a state marijuana agency as of October 11, 2021, and one state passing legislation with the intent to allow a state agency to prohibit the general sale of Delta-8 THC products. The prohibition is primarily through interpretation of existing statutes classifying tetrahydrocannabinol (“THC”) as controlled substances, even in those jurisdictions in which marijuana has been authorized for medicinal or adult use.  

Connecticut, Kentucky, Louisiana, Michigan, Nevada, New York, North Dakota, Vermont, and  Washington have taken direct action or made announcements limiting Delta-8 THC products, with  Kentucky announcing a narrow interpretation of the 2018 Farm Bill, New York and Washington taking administrative measures to restrict the products, and Connecticut, Louisiana, Michigan, and North Dakota modifying their definitions of marijuana/cannabis and hemp to place total THC limits on legal hemp products. Vermont sent notice to hemp growers in the state advising them that Delta-8 THC is considered a synthetic cannabinoid and that such products are prohibited under Vermont’s hemp rules.  

Additionally, other states have considered or are currently considering action limiting or further regulating Delta-8 THC and similar products. Oregon’s legislature recently enacted legislation that will allow its regulatory agencies to set a total THC limit on generally available hemp products and classify and regulate products with total THC above those limits as marijuana and cannabis products. Oregon’s regulatory agency has already issued temporary rules including hemp products as adult-use cannabis products items if they contain over a certain amount of Delta-8 THC, thereby limiting sales to individuals over 21 years of age. Illinois has pending legislation that is likely to pass that will regulate the testing, labeling, and sale of  Delta-8 THC products.  

The following analysis identifies the fifteen states that currently prohibit Delta-8 THC products, as  well as those states most likely to enact legislation or regulations in the near future to limit or regulate the  sale of Delta-8 THC products.1 

What is Delta 8? Delta 8 and Cannabis Plant

Delta-8 occurs in small concentrations in cannabis plant material. It is an isomer of cannabinol, another minor cannabinoid found in significant quantities only in hash oil made from hemp.

Delta-8 is an extremely potent drug from the cannabis plant, with a method of action similar to delta-9 THC. Delta-8 is also has milder psychoactive effects. Its effects are typically described as euphoric and energetic. Delta-8 is produced by the heating, vaporization, or combustion of plant material.

There is evidence to suggest that both phytocannabinoids Delta-9 THC and cannabinol when exposed to extreme heat in a bong will convert to Delta-8 THC. This is because the chemical structure of both Delta-9 THC and cannabinol share a precursor molecule, cannabigerol, which in turn can be - according to existing research - turned into Delta-8 THC by high temperature exposure. Delta 8 THC is legal on a federal level, but as with any federal law, states can accept the provisions of the 2018 Farm Bill or place their own restrictions on the legality of delta 8 THC products. Today we will tell you about federal level legalization of Delta 8.

STATE-BY-STATE ANALYSIS  

Current Prohibition 

Is Delta 8 Legal in Alaska?  

Alaska prohibits Delta-8 THC products, as THC is considered a Schedule IIIA controlled substance unless specifically exempted by another state law. Alaska Stat. § 11.71.160(f)(3). Alaska’s definition of marijuana includes “natural or synthetic tetrahydrocannabinol,” encompassing Delta-8 THC, making it a  controlled substance and illegal for general sale under Alaska law. See Alaska Stat. §§ 3.05.100, 11.71.900.  

Is Delta 8 Legal in Arizona?

Arizona prohibits Delta-8 THC products because despite the authorization of adult-use marijuana,  cannabis plants, including all salts, isomers, and preparations of THC, remains a Schedule I controlled substance in the state. See A.R.S. §§ 26-2512(A)(3)(w); 36-2501(A)(2). Therefore, Delta-8 THC products are illegal.  

Is Delta 8 Legal in Arkansas? 

Delta-8 THC products are illegal in Arkansas, as THC is considered a Schedule VI controlled substance unless it is contained in hemp-derived CBD and at a level of not more than 0.3%. A.C.A. § 5-64- 215. Additionally, synthetic equivalents of substances contained in cannabis are also Schedule VI controlled substances. Id. Therefore, Delta-8 THC products are prohibited under Arkansas law.  

Is Delta 8 Legal in Colorado? 

On May 14, 2021, the Colorado Department of Public Health & Environment issued a notice stating  that “chemically modifying or converting any naturally occurring cannabinoids from industrial hemp is  non-compliant with the statutory definition of ‘industrial hemp derived products.’” This includes any process that converts CBD into Delta-9, Delta-8, or Delta-10 THC. Therefore, these products are considered illegal under Colorado law.  

Is Delta 8 Legal in Connecticut?  

Effective July 1, 2021, as part of its marijuana legalization legislation, Connecticut prohibited the sale of Delta-8 THC products unless sold by a licensed cannabis retailer or medical marijuana dispensary.  An Act Concerning Responsible and Equitable Regulation of Adult-Use Cannabis, 2021 Ct. SB 1201. This  was done by expanding the definition of “marijuana”, and thereby the definition of regulated “cannabis” to  include “any product made using hemp…which exceeds [0.3%] total THC concentration on a dry weight  basis; manufactured cannabinoids, synthetic cannabinoids[.]” Id. at § 141.

Connecticut’s Department of Consumer Protection has issued a warning to businesses confirming this provision prohibits the sale of Delta-8 THC products by individuals and entities that do not have cannabis licenses as of July 1, 2021. 

 

Is Delta 8 Legal in Delaware?  

Delta-8 THC products are illegal in Delaware, as any “material, compound, combination, synthetic  substitute or preparation which contains any quantity of marijuana or any tetrahydrocannabinols, their salts,  isomers, or salts of isomers” is a Schedule I controlled substance under Delaware law. 16 Del. C. §§  4714(d)(19), 4701(28). Possession of marijuana or THC, which would include Delta-8 THC products, is  currently considered a misdemeanor. 16 Del. C. § 4764. Accordingly, Delta-8 THC products are illegal  under Delaware law.  

Is Delta 8 Legal in Idaho?  

Delta-8 THC products are illegal in Idaho, as THC (except in hemp plant with no more than 0.3% Delta 9 THC) and synthetic equivalents of substances contained in cannabis are Schedules I controlled substances.  Idaho Code § 37-2705(d)(27). The sale and distribution of Schedule I substances are potentially felonies in  Idaho, and therefore, Delta-8 THC products are illegal under Idaho law. Idaho Code §§ 37-2732, 37-2734.  

Is Delta 8 Legal in Iowa?  

Delta-8 THC is illegal in Iowa, as THC, other than in products authorized for medicinal use under its medical marijuana program, remains a controlled substance. See Iowa Code § 124.101. Iowa’s hemp rules limit total THC concentration to less than 0.3% and are not limited only to Delta-9 THC. See Iowa  Code § 124.101 et seq.; ARC 4842C. Accordingly, products containing Delta-8 THC, even if hemp-derived,  are illegal.  

Is Delta 8 Legal in Kentucky?

Through an April 19, 2021 letter issued to Kentucky Hemp License holders, the Kentucky  Department of Agriculture (“KDA”) stated that it views Delta-8 THC as a Schedule I controlled substance under federal and state law. Therefore, the distribution of products containing Delta-8 THC is illegal and that distribution could lead to revocation of hemp licenses and criminal prosecution.  

This conclusion is based on the KDA’s reading of the 2018 Farm Bill, which exempted cannabis with not more than 0.3% total Delta-9 THC from the definition of marijuana. The KDA stated that no equivalent exemption was created for Delta-8 THC and, therefore, its manufacture and marketing remain prohibited by federal and state law. The KDA’s position ignores that Delta-8 THC products generally do not contain any Delta-9 THC and therefore would be considered exempted. Regardless, the KDA has made clear that Delta-8 THC products are illegal under state law unless or until there is a specific federal or state exemption for such products. 

Is Delta 8 Legal in Louisiana?  

Effective August 1, 2021, Louisiana will define “consumable hemp product” to prohibit hemp products that contain non-naturally occurring cannabinoids or contain a total THC concentration of more than 1% on a dry weight basis. Louisiana House Bill 640. While not explicitly prohibiting Delta-8 THC  products, the combined modification of the “consumable hemp product” definition will effectively ban the general sale of Delta-8 THC products and treat them the same as Delta-9 THC products.  

Is Delta 8 Legal in Michigan?  

Beginning October 11, 2021, Delta-8 THC products will be regulated as marijuana products, and not allowed for general commercial sale. This is a result of the legislature amending the definitions of  “industrial hemp” and “marihuana” within the Michigan Regulation and Taxation of Marihuana Act. See Michigan HB 4517 (2021). The legislation expands and modifies the definition of “industrial hemp” to  include only those products with a “THC concentration of 0.3% or less on a dry-weight basis.” Id. The  existing definition of “industrial hemp” only required that the products have a “delta-9 [THC] concentration  of 0.3% or less on a dry-weight basis.” MCL 333.27953. The legislation adds a definition for “THC” that includes tetrahydrocannabinol unless excluded by the Michigan Marijuana Regulatory Agency. See  Michigan HB 4517.  

The legislation also gives the Michigan Marijuana Regulatory Agency the authority to exclude from the definition of “THC” tetrahydrocannabinol, if, after addressing factors identified in the legislation, it determines that the particular tetrahydrocannabinol does not have a potential for abuse. Id. As such, the agency may in the future modify the particular tetrahydrocannabinol included within the definition of  “THC” so as to allow Delta-8 products in some form.  

Is Delta 8 Legal in Mississippi?  

Delta-8 THC products are illegal in Mississippi, as all tetrahydrocannabinol, as well as their synthetic equivalents, are Schedule I controlled substances under Mississippi law. Miss. Code Ann. § 41- 29-113(d)(31). Possession or distribution of Schedule I controlled substances are generally felonies under  Mississippi law, and accordingly, possession or distribution of Delta-8 THC products could be subject to felony sanctions. See Miss. Code Ann. § 41-29-139.  

Is Delta 8 Legal in Montana?  

Delta-8 THC products are considered banned under Montana law as tetrahydrocannabinol, as well as their synthetic equivalents, are Schedule I controlled substances under Montana law. Mont. Code Ann.  § 50-32-222(4)(ff).  

Is Delta 8 Legal in Nevada?

While originally legal under Nevada’s definition of “hemp,” Delta-8 THC products are no longer legal in Nevada as Nevada modified its definition of THC within its Uniform Controlled Substances Act to specifically include Delta-8 THC. See NRS 557.180; NRS 453.139. Under Nevada law, hemp is technically legal if the  “THC concentration that does not exceed the maximum THC concentration established by federal law for  hemp.” NRS 557.160.  

In light of these provisions, Nevada’s Cannabis Compliance Board has stated that products exceeding 0.3% THC, including only Delta-8 THC, are considered cannabis and therefore require a CCB  licensed before a person may legally make or sell Delta-8 THC products.  

Is Delta 8 Legal in New York?  

Through rules proposed by the New York Health Department, Delta-8 THC products are prohibited for retail sale in New York. The regulations specifically state that all “cannabinoid hemp products  distributed or offered for retail sale in New York State shall not contain synthetic cannabinoids or cannabinoids created through isomerization including [Delta-8 THC] and [Delta-10 THC].” The rules also prohibit the processing of products with Delta-8 and prohibit retailers from possessing Delta-8 created by isomerization products immediately and prior to the effective date of the regulations.  

Is Delta 8 Legal in North Dakota? 

North Dakota recently enacted legislation amending its existing hemp statute to allow only hemp and hemp products that contain less than 0.3% total THC, and not just Delta-9 THC. N.D. Cent. Code §  4.1-18.1-01. The law further defines THC to include Delta-9 THC, as well as “any structural, optical, or geometric isomers” of THC, and specifically Delta-7, Delta-8, and Delta-10 THC. Id. It also prohibits individuals and entities licensed under North Dakota’s hemp program from “engag[ing] in the isomerization of cannabinoids to create isomers” of THC, including Delta-8, Delta-9, and Delta-10 THC, or selling such products.  

Accordingly, under the narrowed definition of legal hemp and hemp products, Delta-8 THC  products and other products containing any type of THC greater than 0.3% are prohibited.  

Is Delta 8 Legal in Oregon?  

Oregon recently enacted legislation that will allow the Oregon Liquor Control Commission (soon to be renamed the Oregon Liquor and Cannabis Commission) (OLCC) and Department of Agriculture  (ODA) the ability to further regulate hemp products. OR HB 3000. This includes setting total THC limits for hemp products, setting up a hemp industry processing licensing system, and banning the sale of products to individuals under 21 years of age. Id. While not explicitly prohibiting Delta-8 THC products, the legislation was enacted so that the OLCC could set a limit on the total THC content of hemp products, and products over that limit would be subject to the OLCC’s marijuana regulations. Id. 

While Delta-8 THC products are not yet prohibited in Oregon, it is expected that the OLCC will  issue rules and regulations setting a total THC limit on hemp products that will severely restrict, if not  outright prohibit, the sale of Delta-8 THC products in general commerce. Through temporary rules,  effective July 19 through December 31, 2021, the OLCC defined hemp products as adult-use cannabis items if they: (a) contain 0.5 milligrams or more of any combination of (i) THC, including Delta-9 or Delta-8  THC; or any other cannabinoids advertised as having an intoxicating effect; (b) contain any quantity of artificially-derived cannabinoids, or (c) has not been demonstrated to contain less than 0.5 milligrams of  Delta-9 THC through testing. OLCC Rule 845-026-0300. Adult-use cannabis items, including hemp products that fall within the definition, cannot be sold or delivered to anyone under 21 years of age except by licensed cannabis sellers delivering the products to individuals over 18 years of age with registry identification.  

Is Delta 8 Legal in Rhode Island?  

While allowing hemp products, such as CBD, Rhode Island maintains THC as a Schedule I  controlled substance. R.I. Gen. Laws § 21-28-2.08(d)(17).  

Is Delta 8 Legal in Utah?   

Utah maintains THC as a controlled substance, including Delta-8 THC. Utah Code Ann. § 58-37- 4(2)(a)(iii).  

Is Delta 8 Legal in Vermont?  

Delta-8 THC products are considered banned pursuant to Vermont Hemp Rules § 6.3, which bans the “use of synthetic cannabinoids in the production of any hemp product or hemp-infused product.”2 Delta 8 THC can be synthetically made from hemp by isolating and manufacturing or synthesizing CBD, which chemically converts CBD into Delta-8 THC and Delta-8 THC products. Vermont considers Delta-8 THC  derived from CBD through this method to be a synthetic cannabinoid and therefore prohibited under the  Vermont Hemp Program, as well as a potential controlled substance under state law, subjecting anyone who distributes or possess Delta-8 THC products to potential criminal sanctions.  

Is Delta 8 Legal in Washington?

Pursuant to Policy Statement No. PS21-01 by the Washington State Liquor and Cannabis Board  (“LCB”), Washington has declared that Delta-8 THC products naturally derived from licensed cannabis are legal, but illegal if derived from hemp or through chemical alteration of licensed cannabis. It is the LCB’s  interpretation that state law prohibits the “distribution, dispensing, manufacture, display for sale, offer for  sale, attempt to sell, or sale to the purchaser of any product that contains any amount of synthetically derived  delta-8[.]” LCB Policy Statement No. PS21-01.  

This policy is based on the LCB’s interpretation and application of Washington’s cannabis statutes as a whole. RCW 69.50.204 includes Delta-8 THC within the definition of Schedule I THC, whether naturally occurring or synthetically derived. Therefore, it is subject to regulation by the LCB. Under  Washington law, it is an unfair or deceptive trade practice to distribute, dispense, manufacture, display for sale, offer for sale, attempt to sell, or sell to a purchaser any product that contains any amount of any synthetic cannabinoid. RCW 69.50.455. Accordingly, it is the LCB’s determination that derivatives,  extracts, cannabinoids, isomers, and CBD isolate from hemp or other sources that are genetically or chemically altered into compounds, such as Delta-8 THC, would be considered synthetic cannabinoids and therefore prohibited. The LCB has advised that it plans to go through a formal rulemaking process for the regulation of Delta-8 THC products.  

Expected or Unclear Prohibition or Regulation by federal law 

Illinois 

Delta-8 THC products are currently legal in Illinois; however, the Illinois legislature is currently considering House Bill 147, the CBD Safety Act, which, while not prohibiting Delta-8 THC products,  would subject them to additional regulation, along with other CBD products. The legislation would give the Department of Agriculture emergency rulemaking power to implement rules regulating the testing,  labeling, packaging, and other aspects of cannabinoid products such as CBD and Delta-8 products. The bill passed the State House and is currently pending before the State Senate.  

North Carolina 

North Carolina does not explicitly prohibit Delta-8 THC products and states that the North  Carolina Industrial Hemp Pilot Program does not regulate or screen for Delta-8 THC when sampling hemp for compliance. However, statements on the North Carolina Department of Agriculture and Consumer  Services’ website raises questions of whether the state will consider such products illegal.  

After stating Delta-8 THC derived from marijuana is illegal and a controlled substance, before  stating that the legality of hemp-derived Delta-8 THC products “depends on who you ask.” It then explains that this is a result of the DEA’s August 21, 2020, Interim Final Rule which takes the position that synthetically derived THC is a controlled substance. As a result, the Department believes that the DEA will  treat Delta-8 THC products as illegal if “derived from chemical conversion or other synthetic methods.”  The Department does not state how it or other North Carolina governmental agencies will treat Delta-8  THC, but this raises the possibility the state may decide to consider it illegal as well and take enforcement action against sellers of the products.

 

 

1 Other states, including Alabama, and Texas have previously considered or are currently considering potential legislation that could restrict or regulate Delta-8 THC products, but are not included in this analysis as they are not currently positioned to be enacted in the very near future. 

2 State of Vermont Agency of Agriculture, Food, and Markets, “Is the Manufacture of Delta-8 THC or Its Use in Hemp  Products Permitted under the Vermont Hemp Program?” April 23, 2021, accessible at  https://agriculture.vermont.gov/hemp-program/manufacture-delta-8-thc-or-its-use-hemp-products-permitted-under vermont-hemp-program.

 

FAQ

What is Delta 8?  

Delta 8 is synthetic Delta-9 tetrahydrocannabinol (THC) that is considered dangerous by the federal government because Delta 8 has not been approved for human consumption. Delta 8 was created in the late 1990s by Rick Simpson, who calls himself "Doctor Simson." Delta 8 differs from Delta 9 THC because it avoids the double bond at the 8th carbon.

Is Delta-8 legal in all 50 states? 

Delta 8 THC is legal for prescribing by doctors in all 50 states under the brand name Delta-8. Delta 8 THC can be synthesized into Delta-9, but Delta 9 is not legal to use or prescribe.

Can I order Delta-8 online legally? 

Delta 8 THC, Delta 9 THC, and Delta-9 synthetic cannabinoids can all be ordered online. Delta 8 is sold in the form of an oil which can be used in e-cigarettes or vaporizers.  Delta-8 is sold legally in the United States, but Delta 8 oil may be illegal depending on local laws. You can buy Delta 8 legally in Black Tie CBD online!

Do you have to be 21 to buy Delta-8? 

Delta 8 oil is kept behind the counter or it may only be sold to adults. Delta-8 is not usually advertised on the Internet and Delta-8 dealers typically do their business in person, so it can be difficult for underage persons to purchase Delta 8.

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