Colorado Banned the Process Companies Use to Make Delta-8 THC

Delta-8 THC can’t even be sold in weed dispensaries in Colorado.

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Lee Johnson

Lee Johnson is the senior editor at CBD Oracle, and has been covering science, vaping and cannabis for over 10 years. He has a MS in Theoretical Physics from Uppsala...

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Fact checked byNeil Willner

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Neil Willner

Neil M. Willner is an experienced cannabis attorney at Royer Cooper Cohen Braunfeld LLC and co-chair of the firm's Cannabis Group. He focuses his practice on the cannabis industry and...

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Delta-8 THC flower sourced from Colorado
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Despite being one of the first states in the country to legalize cannabis, delta-8 THC can’t be bought legally in Colorado.

State agencies instituted rules against chemically modifying hemp or marijuana-sourced ingredients in 2021, and all delta-8 THC on the market is covered by these rules. However, a new bill signed into law in 2023 does establish some basic rules and regulations if either agency changes its position in the future. 

Here’s what you need to know about delta-8 THC in Colorado, as it stands today and how things might develop in the future.   

Delta-8 THC is not legal to sell in Colorado, following a policy announcement from the Colorado Department of Public Health and Environment (CDPHE).

Although marijuana has been legal in Colorado since 2012, hemp-derived delta-8 THC was only considered legal for a short period of time. Like most states, Colorado essentially replicated the 2018 Farm Bill in state law, which led many to assume that hemp delta-8 THC is legal in the state. However, in May 2021, the CDPHE issued a notice essentially stating that if you chemically modify natural hemp components, the result is no longer hemp. 

The most recent hemp law in the state, Senate Bill (SB) 23-271, made many changes to state hemp law but re-affirmed CDPHE’s authority over this issue for the hemp industry (section 25-5-427(3)(d)). In practice, it didn’t really change anything for delta-8 THC.

It separates cannabinoids into “intoxicating,” “potentially intoxicating” and “non-intoxicating” (section 25-5-427(4)(a)/page 8), pointing out that products containing “non-intoxicating” cannabinoids can include up to 1.75 mg of THC (any THC – section 44-10-209(2)(d)/page 22-23) and a CBD to THC ratio of 15:1 or more.

Likewise, the bill also allows the Marijuana Enforcement Division (MED) to establish rules on this topic (section 44-10-209(4)(a)/page 27) for the regulated marijuana industry. However, the MED also issued a notice about this in 2021, again stating that the conversions used to make delta-8 THC are not permitted for marijuana products.   

RELATED: Where Is Delta-8 THC Legal? A State-by-State Map

Delta-8 THC Legislation Timeline for Colorado 

Hemp-derived delta-8 THC hasn’t always been prohibited in the state of Colorado. The passing of Senate Bill 19-220 (SB. 19-220) in 2019 legalized hemp and all hemp-derived compounds in line with the federal Agriculture Improvement Act (2018 Farm Bill). Legalized hemp compounds included delta-8 and delta-10 THC.

However, in May 2021, the CDPHE and MED issued notices stating that “chemically modifying or converting any naturally occurring cannabinoids from industrial hemp is non-compliant with the statutory definition of ‘industrial hemp product’”.  

Since hemp-derived delta-8 THC is chemically synthesized from CBD isolate, Colorado considers it a controlled substance under Colorado state law, as outlined in Senate Bill 14-184 and Title 18 Criminal Code, Article 18 (Uniform Controlled Substances Act 2013). Since it isn’t classed as “hemp,” the only way it could be exempted from this is if it was sold in licensed marijuana dispensaries.

The notice also says insufficient evidence exists to determine whether or not the chemical synthesis of CBD to delta-8 produces toxic or harmful byproducts. As a result, delta-8 and other THC isomers are not allowed in food, dietary supplements, or cosmetics. 

In 2022, the state passed SB 22-205, which essentially gave the CDPHE the authority to prohibit chemical modifications used to create delta-8 THC (and other cannabinoids), and established a task force to tackle the issue of intoxicating hemp products. The task force released its report on January 3rd, 2023, which recommended many restrictions including a per-serving THC limit of 2.5 mg for hemp products. These recommendations formed the basis for SB23-271, which was signed into law on June 7th, 2023, and made a few changes to the original proposal but retained the key features.

Can Delta-8 THC Be Added to Food? 

Delta-8 THC cannot be added to food in Colorado at present. Delta-8 THC is not allowed in hemp products by state law, and federal law also outlaws this. 

SB23-271 does state that (25-5-427(6)/page 14) a product containing hemp is not considered “adulterated” – which is the key term when it comes to use in food – but this doesn’t apply to delta-8 THC because it is not “hemp” according to the CDPHE. On the federal level, the FDA considers delta-8 THC to be an adulterant, so it can’t be added into food that enters interstate commerce. So taking these two points together, you can neither use delta-8 in food sold between states nor use it in food remaining in Colorado – it is effectively banned.   

Can You Buy Delta-8 in Colorado? 

Delta-8 THC is banned in Colorado and this rule is genuinely followed, so no, you cannot buy delta-8 THC products in the state.

Delta-8 Alternatives You Can Legally Buy in Colorado 

The best alternative to delta-8 THC that’s legally available in Colorado is just marijuana itself, which has been legal in the state since 2012. If you really want an alternative to delta-8 specifically, just choose a milder strain.   

SB23-271 includes basically every THC isomer (25-5-427(4)(D)(I)/page 10) in its definition of intoxicating hemp. While it’s technically possible to sell these – or at least delta-9 THC – as part of hemp, the new dosage limitations make it less practical to buy this way. If you want to get high, it’s much easier and more effective to just go to one of the many state-licensed dispensaries and choose a cannabis product. 

Age Restrictions

If delta-8 THC products were to be sold, they would be restricted to adults aged 21 or over, unless the dosage was very low and the product contained twenty times more CBD than THC.

In SB23-271 (25-5-427(8)/page 15), the law explicitly states that the only way hemp products can be sold to people aged under 21 is if it has less than 1.25 mg of (any) THC per serving, and has more than 20 parts CBD to each part THC. If delta-8 THC was approved for sale at some point in the future, products would still have to abide by these rules, and this would likely rule out basically any commercial delta-8 THC product as they exist today. 

Public Consumption Laws

You cannot consume delta-8 THC in public in Colorado. Delta-8 THC isn’t considered hemp, and the rules around marijuana prohibit public use.

Colorado law prohibits “open and public” consumption of marijuana, and “marijuana” is defined in a way that may include delta-8 THC, so it’s unlikely you’d be able to consume delta-8 THC in public legally. If you were smoking, people would likely assume it was marijuana anyway. In the worst case interpretation, delta-8 THC may be considered a controlled substance in Colorado. 

Driving Laws

As with alcohol, there is a threshold level of “blood THC,” and if you exceed this, you’re considered to be driving under the influence.

It is illegal to drive under the influence of drugs or alcohol in Colorado (section 42-4-1301(1)(a)). Additionally, it clarifies that the DUI law applies to all listed controlled substances (section 42-4-1301(1)(d)), which means it also explicitly includes delta-8 THC. 

Colorado DUI law works a little differently than many states, because it actually lists a limit for THC, like the 0.08 BAC limit usually used for alcohol. If you have more than 5 nanograms of delta-9 THC per milliliter of blood, you are considered to be under the influence of drugs (section 42-4-1301(2)(e)(IV)). 

Drug tests can’t actually tell the difference between the two types of THC, so even though the law technically applies to delta-9 specifically, you’ll look just like you had marijuana to the test. Protesting that it’s really delta-8 won’t make a difference because of the general rules listed above. Plus, if you’re over the established limit for THC it’s still pretty solid evidence you’re impaired (based on how it works in Colorado law), whichever specific THC it is.

Punishments for a first offense include between 5 days and one year in county jail, a fine of between $600 and $1,000 and between 48 and 96 hours of community service. You may get reduced penalties if you’re just considered “ability impaired,” which is basically still being impaired but not to as substantial a degree. 

Can You Travel to Colorado With Delta-8? 

You can’t travel to Colorado with delta-8 THC, because the state considers it to be marijuana, and you can’t travel between states with marijuana.

Closing Thoughts: The Future for Delta-8 in Colorado 

The future of delta-8 THC in Colorado is now in the hands of both the Marijuana Enforcement Division (MED) and the CDPHE, who have the authority to establish rules to either allow or prohibit licensees from synthetically deriving cannabinoids like delta-8. 

SB23-271 technically makes it possible for hemp products to contain delta-8 THC, but this depends on the rules of the CDPHE (section 25-5-427(3)(d)/page 7) and the MED (44-10-209(4)(a)/page 27) about chemically modifying or deriving cannabinoids. Both agencies released documents (MED and CDPHE) in 2021 stating that these processes were not allowed in their markets. However, since this law explicitly addresses delta-8 THC and gives the agencies the option to authorize the process too, this could change. 

Overall though, it’s likely that the 2023 Farm Bill will clarify that products with synthetically-derived THCs are not “hemp” by law. So if there’s a future for delta-8 in Colorado, it will be in the regulated cannabis market.