Is Delta-8 Legal in California?

Despite having some of the most liberal cannabis laws in the US, California restricts and regulates delta-8 products.

Hemp Delta-8 THC flower grown in California
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California restricts hemp-derived delta-8 and essentially regulates it the same way as high-THC marijuana. 

The state recently passed legislation to regulate the use, possession, sale, and production of hemp-derived delta-8 products carrying above the 0.3% THC limit. All delta-8 products containing more than 0.3% THC must be produced under strict state guidelines. No unlicensed online vendors or physical stores can sell delta-8 products. 

Like delta-8, California state law also restricts and regulates delta-10, HHC, and THC-O products carrying above 0.3% THC. 

On the other hand, non-intoxicating hemp-derived products are legal and now permitted for use in food, pet food, cosmetics, and dietary supplements, provided the appropriate California state licensing body licenses them.

Summary

  • California regulates all delta-8 products carrying above 0.3% combined THC concentration. 
  • Other THC isomers, including delta-10 and HHC, are also regulated. 
  • Medical marijuana and recreational cannabis are both legal, as is hemp-derived CBD. 
  • Recent legislation allows hemp-derived cannabinoids in food, dietary supplements, cosmetics, and pet food.

Is delta-8 THC legal in California?

Delta-8 THC flower buds front of California state flag

No, delta-8 is restricted in California. According to state law, hemp-derived delta-8 products carrying above 0.3% THC are regulated by state governing bodies. 

Recent legislation (Assembly Bill 45) establishes a robust framework for the California Department of Public Health to regulate certain hemp products. 

The bill specifically redefines “THC” to include delta-8, delta-9, delta-10, and other THC isomers. It also includes cannabinoids the California Department of Health deems to cause intoxication. 

Under this redefinition, hemp products can only carry 0.3% THC. No legal hemp product can contain more than 0.3% delta-8, delta-9, delta-10, or any other intoxicating cannabinoid. 

According to a statement from a CDPH representative sent to CBD Oracle by email, the CDPH “also has the authority to further regulate the number of intoxicating cannabinoids, as needed in future regulations to ensure consumer safety.”

See the full statement below:

“Assembly Bill 45 (Aguiar-Curry, 2021) established the framework for the California Department of Public Health (CDPH) to regulate certain industrial hemp products, including those that contain Delta-9 tetrahydrocannabinol and Delta-8 tetrahydrocannabinol. Though Delta-9 may be the most common tetrahydrocannabinol (THC), the current statutorily defined limit of THC in industrial hemp products, regardless of the type, is a concentration of no more than 0.3 percent on a dry weight basis. CDPH also has authority to further regulate the amount of intoxicating cannabinoids as needed in future regulations to ensure consumer safety. As always, CDPH strives to ensure all regulated commodities within its jurisdiction are safe, effective and not misrepresented in the marketplace.”

Legislative history of delta-8 in California

On October 6, 2021, California lawmakers passed Assembly Bill 45 (AB-45), signed into law by California Governor Gavin Newsom. The bill primarily does two things:

  1. Allows hemp and hemp-derived cannabinoids, extracts, and derivatives in foods, beverages, dietary supplements, cosmetics, and processed pet food, provided they contain no more than 0.3% THC. 
  2. Redefines “THC” to include delta-8, delta-9, delta-10, and other THC isomers. This redefinition does not include non-intoxicating cannabinoids like CBD, CBG, and CBC. 

Allowing hemp-derived compounds in foods, beverages, dietary supplements, cosmetics, and pet food is good news for California. 

The CDPH prohibited ingestible hemp-derived products three years ago, following the U.S. Food & Drug Administration’s (FDA) guidelines. With AB-45, manufacturers can freely produce and sell hemp-derived products, provided they correspond with the correct CDPH licensing. 

On the other hand, redefining “THC” poses problems for delta-8 companies, especially unlicensed ones. 

Having a 0.3% total THC concentration limit means all delta-8 companies and their products are subject to California’s regulatory oversight. 

However, California has yet to establish a regulatory framework for delta-8 products, placing companies in a grey area. Can they sell unlicensed delta-8 products while the state creates a framework, or will law enforcement view the act of selling as breaking current laws? No one knows. 

Previous legislation (Senate Bill 153) allowed the use, possession, sale, and production of hemp-derived delta-8 products carrying above 0.3% THC. 

Senate Bill 153 coincides with the Farm Bill (Agriculture Improvement Act), which federally legalized all hemp-derived compounds, including delta-8, delta-10, HHC, and THC-O. 

RELATED: Where is Delta-8 THC Legal in the US?

Purchasing delta-8 products in California

Delta-8 edible product sold in California
Delta-8 products are widely available in vape shops and CBD stores across California. Photo: CBD Oracle

You cannot purchase hemp products carrying above 0.3% delta-8 from unlicensed physical stores or online vendors. 

The CDPH restricts and regulates all hemp products containing 0.3% THC, including delta-8, delta-9, delta-10, and other THC isomers. 

In a statement from the CDPH, all businesses selling delta-8 must adhere to California’s laws and regulations, saying they benefit businesses and consumers. 

“In general, laws and regulations provide the minimum requirements all businesses must follow for their operations. Businesses and consumers purchasing industrial hemp extract and final form products will benefit knowing the products meet the requirements outlined in law.”

A Californian sidewalk delta-8 vendor was recently arrested in Ocean Beach for selling unlicensed delta-8 products. The SDPD confiscated his inventory and cited him for possession of cannabis for sale. 

Can you cross California state borders with delta-8?

You cannot cross California state borders with delta-8 THC products unless they carry below 0.3% THC. The state restricts and regulates all unlicensed delta-8 products above the 0.3% combined THC concentration.

Likewise, you cannot enter California with marijuana-derived delta-8, even though the state legalizes medical and recreational cannabis. 

The federal government controls all state borders and considers marijuana illegal. Entering California with marijuana could be seen as drug trafficking, a felony crime. 

We recommend keeping hemp and marijuana-derived delta-8 at home. Do not cross California state borders with it in your possession. 

Is weed legal in California?

Marijuana delivery billboard sign in California city
Photo: Eaze

Yes, weed is legal in California under state law. 

California was the first to legalize medical cannabis in 1996 for patients with a select number of medical conditions, including cancer, AIDS, glaucoma, and arthritis. 

Later, in 2016, recreational cannabis became legal in California for adults above the age of 21. Adults can possess up to 28.5 grams (approx. one ounce) of marijuana flower and one gram of cannabis concentrate. 

The agencies responsible for regulating cannabis were the California Bureau of Cannabis Control (BCC), the Department of Food & Agriculture, and the Department of Public Health. 

However, all three agencies combined responsibilities in 2021, resulting in the creation of the Department of Cannabis Control. 

Medical marijuana laws in California

California was the first US state to legalize medical marijuana on November 5, 1996, following the groundbreaking voter-approved Proposition 215 (the Compassionate Use Act of 1996). This initiative was later implemented through the Senate Bill 420, otherwise known as the California Medical Marijuana Program. 

This initiative passed with 5,382,915 (55.6%) votes in favor of medical cannabis legalization versus 4,301,960 (44.4%) against, allowing patients and their caregivers access to medical cannabis for various conditions such as AIDS, cancer, arthritis, glaucoma, migraine, and spasticity (with a doctor’s recommendation). Caregivers are also permitted to grow and cultivate marijuana at home. 

There are currently no possession limits for medical marijuana patients or their caregivers. However, treatment must at least be “consistent with the patient’s medical needs.” 

Recreational marijuana laws in California

Purple strain of medical marijuana sold in California

Recreational marijuana is legal in California and has been since November 18, 2016, following Proposition 64 (Adult Use of Marijuana Act), which was approved by California voters (57% in favor, 43% against). 

The bill not only legalizes the use, possession, purchase, and consumption of marijuana for adults over the age of 21 but also creates a framework for taxing marijuana sales and cultivation. 

However, there are certain limitations. Under the Adult Use of Marijuana Act, adults aged 21+ can possess up to 28.5 grams (roughly one ounce) of marijuana flower and one gram of cannabis concentrate. If they’re not participating in the state’s medical marijuana program, they can grow and cultivate up to six cannabis plants for personal use.

RELATED: What’s the Difference Between Delta-8 and Delta-9?

Can you buy delta-10 THC, THC-O, or HHC in California? 

Like delta-8, you cannot purchase hemp-derived delta-10, THC-O, or HHC carrying above 0.3% THC in California. The state regulates all intoxicating delta-9 THC isomers and might potentially restrict other intoxicating cannabinoids in the future. 

Is CBD legal in California?

Yes, hemp-derived CBD is legal in California under state and federal law, meaning the state permits the use, possession, sale, purchase, distribution, and production of hemp-derived CBD products.

Hemp-derived CBD was made legal in California following Senate Bill 153 in 2019, which legalized hemp, hemp production, and hemp-derived products under state law. This bill coincided with the federal Agriculture Improvement Act (Farm Bill 2018) and came into effect on January 1, 2020. 

Unlike marijuana and marijuana-derived products, no regulatory agency controls the sale or distribution of hemp-derived CBD products, meaning anyone under the age of 18 can purchase them. There are also no restrictions on the quantity of hemp CBD you can have in your possession. 

CBD-infused foods, beverages, dietary supplements, and cosmetics in California 

California now allows CBD-infused foods, beverages, dietary supplements, and cosmetics following the passing of the California Assembly Bill 45 (AB-45) on September 10, 2021, signed by Governor Gavin Newsom. 

Under AB 45, all CBD-infused foods, beverages, dietary supplements, and cosmetics are subject to mandatory third-party testing by independent laboratories to ensure legal levels of THC and contaminants. 

This bill is in direct contrast with the Food & Drug Administration’s (FDA’s) guidelines, which prohibit all CBD-infused foods, beverages, and food supplements under its Federal Food, Drug, and Cosmetic Act (FD&C).

AB 45 also permits the use, possession, sale, distribution, and manufacture of smokable hemp products (CBD hemp flower). 

Upcoming legislation

There is no upcoming legislation that could change the legality of hemp-derived delta-8 THC in California. 

Conclusion

California’s decision to restrict and regulate hemp-derived delta-8 products might come as a shock. The state has liberal cannabis laws and was one of the first states to legalize medical marijuana. However, delta-8’s reputation stifles its progress in an unregulated market, forcing California to oversee how companies produce delta-8 products, particularly from a safety standpoint. 

We believe regulations are needed in the delta-8 industry. Many delta-8 companies are producing unsafe and potentially harmful delta-8 products. With state licensing and regulatory oversight, we will see a shift in quality. Unfortunately, licensing and regulations won’t stop an eventual black market. People will still get their hands on delta-8 products — just not legally.

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