Georgia Legalized Delta-8 THC in 2019, But a District Attorney Disagrees

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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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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’s position in Georgia is a little unclear at the moment, because even though state law appears to legalize the cannabinoid, a District Attorney issued a contrary opinion in early 2022.

This has led to much uncertainty in Georgia’s hemp industry, and some companies have initiated legal action following a raid on a distribution center.

The short version is that the legality of delta-8 THC in Georgia is uncertain, but we’ve collected all the details to give you the full picture of what’s going on. 

Delta-8 THC is generally considered legal to sell in Georgia, but its position is slightly unclear at the moment as a result of ongoing legal action.

House Bill (HB) 213 set up Georgia’s hemp industry, and this legislation follows the guidelines laid down by the 2018 Farm Bill. Crucially, it uses the same definition of hemp (section 1, 2-23-3(5)/page 2) as the federal bill and makes exemptions for hemp and hemp products under marijuana and THC in the state’s controlled substances code (sections 2 and 3/pages 9 and 10). 

From this starting point, the industry progressed much like others across the country, bolstered by the assumption that delta-8 THC was legal in the state. However, Gwinnett County District Attorney (DA) Patsy Austin-Gatson disagreed, and this has created a lot of confusion in the state since early 2022.

It’s likely that delta-8 THC will be ruled to be legal in the state, but at present – especially in Gwinnett County – the situation is unclear.

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

Gwinnett County vs. Sass Group, Great Vape and Elements Distribution 

Gwinnett County’s DA claims that – despite the exemption for hemp products – delta-8 THC is a controlled substance in Georgia. After a previous ruling in favor of the industry was reversed, the issue remains unresolved, but technically, raids are allowed to resume in the county. 

In January 2022, Gwinnett County DA Patsy Austin-Gatson issued a warning stating that delta-8 THC, delta-10 THC and basically any THC other than delta-9 are illegal under Georgia law. The DA’s reasoning was that while delta-9 THC was exempted from the Controlled Substances Act, delta-8, delta-10 and other THC isomers were not.

The reality of the situation is that “hemp” or “hemp products” were excluded from the definitions of both THC and marijuana, as noted in the previous section. This means that if the products containing delta-8 THC classify as “hemp products,” they are indeed included in the exemption from the controlled substances bill. Although the 9th Circuit doesn’t cover Georgia and Circuit courts disagree all the time, the 9th Circuit’s reasoning on this issue – that Congress did legalize delta-8 THC derived from hemp – seems equally valid in this case. 

RELATED: Why the Ninth Circuit Court Ruling on Delta-8 THC Still Matters

Regardless, in February 2022 a distribution center was raided by police on the basis of this announcement, with around $2 million worth of product being seized. This sparked a lawsuit, which quickly resulted in a 30 day temporary restraining order being granted against Austin-Gatson and her office, then an injunction in April 2022.

Then, in March 2023, the Georgia Supreme Court reversed the decision, meaning that raids, arrests and prosecutions could technically continue, because the original injunction was invalid. The decision, though, was more about “sovereign immunity” than it was about the legality of delta-8 THC products. Specifically, the ruling states that the case should have been dismissed because Austin-Gatson was included on the suit as well as the state. 

However, the legal battle is ultimately still ongoing, with Elements Distribution’s attorney arguing that the state’s seizure of its products was unlawful. The ongoing case revolves around the use of hemp in food, and frankly Elements’ case on this point is quite weak, but it’s important to remember that the dismissal in March was not because the industry argument was flawed, but that there was a procedural issue. Because of this, there is still a chance that there will be another, more substantial challenge to Gwinnett County in the future.  

Delta-8 THC Legislation Timeline for Georgia

Cannabis grown in Georgia

Georgia passed HB 213 in 2019, and this was assumed to have legalized delta-8 THC until the Gwinnett County DA issued a contrary opinion in 2022. 

HB 213 was signed into law on May 10th, 2019, and this is the only piece of legislation that has been passed relevant to delta-8 THC. 

As discussed in detail above, Gwinnett County DA Patsy Austin-Gatson issued a non-binding opinion in January 2022 stating that delta-8 THC – along with delta-10, delta-7 and other THC isomers – are illegal in the state. This has created much confusion, and even though the Georgia Supreme Court ruled in March 2023 that prosecutions can continue, the issue remains unresolved.

Can Delta-8 THC Be Added to Food? 

Delta-8 THC cannot be added to food in Georgia, because state law explicitly upholds the Federal Food, Drug and Cosmetic Act (FD&C Act). 

The FD&C Act makes it illegal to add delta-8 THC (or CBD) to food that will enter interstate commerce, according to the FDA’s reading of the law. Georgia’s hemp law, in turn, defers to the federal regulations (section 2-23-3(6)/pages 2-3, lines 58-61) around the use of hemp in food.

This means that it is illegal to add delta-8 THC to food in Georgia, regardless of the outcome of the ongoing legal action. 

Can You Buy Delta-8 THC in Georgia? 

Delta-8 THC is available to buy in Georgia from both physical and online stores. Despite the law discussed above, it is also possible to buy delta-8 THC edibles in Georgia. 

RELATED: The Best Delta-8 THC Brands, Reviewed

Delta-8 Alternatives You Can Legally Buy in Georgia 

Georgia’s hemp law follows the guidelines laid down by the 2018 federal Farm Bill, and so hemp delta-9, delta-10, THCV, HHC and other hemp-derived cannabinoids are also legal in the state. 

Age Restrictions

Georgia’s hemp law doesn’t include an age restriction, so technically, anybody can buy delta-8 THC regardless of their age. However, stores generally institute a minimum age of 21 (or possibly 18) for purchases of delta-8 THC. They aren’t required to, though, so this may not always be upheld. 

Public Consumption

Georgia’s hemp law doesn’t discuss public use of delta-8 THC, so technically there is no restriction on where you can use it. However, it’s illegal to smoke in most indoor public places in the state, so you can’t smoke delta-8 THC there either.

As in many states, there is no specific prohibition on using delta-8 THC anywhere you like – aside from existing rules on smoking indoors – but it is probably not wise to use it in public. It’s likely that it would be confused for marijuana if you were smoking it.

Edibles probably wouldn’t lead to many issues, but if you do use them in public, you should have a Certificate of lab Analysis (COA) or a receipt with you so you can prove that it’s hemp. 

Driving Under the Influence of Delta-8 THC

No, it’s illegal to drive under the influence of delta-8 THC in Georgia.

Georgia’s DUI law states that it’s illegal to drive “under the influence of any drug to the extent that it is less safe for the person to drive.” This doesn’t refer to a specific substance, so since delta-8 THC is clearly “any drug” and it does impair you, it’s covered by this part of the law. Whether paragraph (a)(6) applies – which states that it’s illegal to drive with “any amount” of a controlled substance in your blood – is dependent on the outcome of the ongoing legal action. 

Punishment in the first instance includes a fine of between $300 and $1,000 and between 10 days and 12 months in prison, a minimum of 40 hours of community service and a clinical evaluation for substance abuse issues. 

RELATED: Can Delta-8 THC Make You Fail a Drug Test?

Can You Travel to Georgia With Delta-8?

Traveling to Georgia with delta-8 THC is likely to be legal, but only if it’s ruled that delta-8 THC is legal at the state level. For now, it’s unclear because of the ongoing legal action in the state. 

Theoretically, delta-8 THC is legal in Georgia and it is widely considered to be legal at the federal level, so you can take it into the state. The Transportation Security Administration (TSA) points out that hemp is permitted on flights, and even says that they aren’t particularly interested in marijuana. As long as the courts rule that Georgia did legalize delta-8 THC, you’ll be able to bring it into the state. 

In the meantime, it’s a little unclear. Provided you bring a COA for the product in question, it’s likely to be OK, but it depends a lot on whether you interact with police officers and what their attitude is. 

Closing Thoughts: The Future for Delta-8 in Georgia 

The court case between Sass Group et. al. and the state of Georgia is the main source of uncertainty for the future of delta-8 THC in Georgia, but it’s unclear how any further action will proceed. However, state lawmakers have also proposed HB 458, which aims to clarify rules surrounding hemp cannabinoids. 

The bill places a couple of limitations on hemp products, including changing the 0.3% limit for hemp so it applies to esters of delta-9 THC (e.g. THC-O) as well as delta-9 itself (section 2-23-3.(6)/lines 29-37) and setting a firm THC limit (including isomers like delta-8) of 25 mg per serving and 500 mg per package (section 2-23-9.(2)/lines 265-267). The bill also makes it illegal to sell consumable hemp products to anybody aged 21 or younger (section 16-12-241(a)(1)/lines 303-309). There hasn’t been action on the bill since March, but it may resurface again in 2024, which is the second half of Georgia’s two-year legislative session.

In short, the legal status of delta-8 THC in Georgia is likely to be clarified one way or another in the next year. However, the 2023 Farm Bill could change all of this.