Is Delta-8 Legal in Idaho?

Idaho not only bans delta-8 but also opposes all forms of THC, even in hemp CBD products.

Hemp delta-8 plan grown in Idaho
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Unsurprisingly, Idaho prohibits delta-8 and considers it a Schedule I controlled substance, meaning the use, possession, sale, distribution, purchase, production, and manufacture of delta-8 products are illegal under state law. Idaho also bans all THC isomers or their synthetic derivatives, including delta-7, delta-10, THC-O, THCP, and HHC. The state even restricts hemp-derived CBD products from carrying any THC.

Is delta-8 legal in Idaho?

  • Delta-8 THC is illegal in Idaho. The state considers hemp-derived and marijuana-derived delta-8 as controlled substances. 
  • Under Idaho state law, the use, possession, sale, distribution, purchase, production, and manufacture of delta-8 products are illegal. 
  • Likewise, all THC isomers, including delta-10, THC-O, and HHC, are also illegal in Idaho under state law. 
  • Hemp-derived CBD, on the other hand, is somewhat legal but largely restricted. No CBD product can carry any quantity of THC. 
  • Medical and recreational cannabis is also prohibited, despite many attempts to legalize it.

Is delta-8 THC legal in Idaho?

No, delta-8 THC is not legal in Idaho. The state considers delta-8 a Schedule I controlled substance under its Uniform Controlled Substances Act. This classification means the state places delta-8 alongside heroin, prescription opioids, and hallucinogens, all of which are seen as having the potential for abuse with no medicinal benefits. 

Delta-8’s legal status in Idaho is not surprising as the state has had a strict stance on delta-9 THC and all its isomers, including delta-10, THC-O, and HHC. No product can carry any quantity of the above cannabinoids, even in trace amounts. 

Legislative history of delta-8 (highlight of key events/bills)

Idaho is one of the only US states to disallow all quantities of THC (including delta-8) in hemp-derived products, including CBD oils, topicals, and lotions. In fact, after the passing of the federal Agriculture Improvement Act (Farm Bill), which legalized hemp and hemp-derived compounds across all 50 US states, Idaho did not establish its own regulatory framework also legalizing hemp and hemp compounds on the state level. 

It wasn’t until April 16, 2021, that Idaho finally allowed the production and cultivation of hemp with the passing of House Bill 126, which also categorized all THC isomers, including delta-8, delta-10, and HHC, as Schedule I controlled substances under the state’s Controlled Substances Act. 

Idaho’s classification of THC isomers as controlled substances means no product, be it hemp or marijuana-derived, can carry delta-8 in any quantity, which isn’t a surprise. State lawmakers and officials have opposed THC for decades. 

An opinion statement from the Idaho Attorney General published in 2015 states:

“Assuming cannabidiol does not contain any THC (which is more than the undersigned knows), in order to not be deemed “marijuana” under Idaho Code §37-2701(t), it must be derived or produced from (a) mature stalks of the plant, (b) fiber produced from the stalks, (c) oil or cake made from the seeds or the achene of such plant, (d) any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, or (e) the sterilized seed of such plant which is incapable of germination.”

This opinion statement is later reinforced by John McKinney, a senior attorney at the Idaho Office of The Attorney General with over 12 years of writing opinions on drug laws in the state. In a 2019 podcast, he says:

The substance cannot contain any quantity of THC, which is the psychoactive ingredient in marijuana that gives the high recreational users are seeking. Even a trace amount of THC in any substance makes it illegal.

Attorney John McKinney

Can you purchase delta-8 in Idaho?

Delta-8 THC concentrate product

No, you cannot purchase delta-8 in Idaho. Hemp-derived and marijuana-derived delta-8 are illegal and considered controlled substances under the state’s Uniform Controlled Substances Act. Any physical retail stores selling delta-8 products are performing an illegal act and will likely end up in trouble with law enforcement. Likewise, no online delta-8 brands currently ship delta-8 products into the state. 

If you see delta-8 products being sold in Idaho, we recommend you don’t purchase them under any circumstance. The use, possession, and purchase of delta-8 products such as delta-8 flower, delta-8 gummies, and delta-8 tinctures are illegal under Idaho state law. 

Can you fly into Idaho with delta-8?

No, you cannot fly into Idaho with hemp-derived delta-8 products in your possession. Under no circumstances should you attempt to import or traffick delta-8 products into the state either. 

Possession of delta-8, which is a Schedule I controlled substance, is a misdemeanor punishable by up to one year in prison and a maximum $1,000 fine. 

You also cannot fly or travel into Idaho with marijuana or marijuana-derived delta-8 in your possession. Not only are marijuana and marijuana-derived delta-8 illegal in the state but the federal government also considers them illegal controlled substances. Since the federal government controls state borders, crossing into Idaho from any other state is a felony. Depending on the quantity, you could be prosecuted for smuggling or trafficking. 

Is marijuana legal in Idaho? 

No, marijuana is not legal in Idaho and is considered a Schedule I controlled substance. The use, possession, sale, distribution, production, and manufacture of marijuana and marijuana-derived products are punishable under the Idaho Controlled Substances Act. However, voter opinion on cannabis is shifting in the state. Kind Idaho, a cannabis activism organization, already has over 5,000 of the total 65,000 signatures required to get a new medical cannabis legalization initiative put on Idaho’s 2022 ballot. 

Medical cannabis grown in Idaho

Medical marijuana

Despite five ballot initiatives between 2012 and 2020 attempting to legalize it, medical cannabis remains prohibited in Idaho under state law, meaning the use, possession, sale, distribution, production, and cultivation of medical marijuana products are not permitted. 

House Bill 108 (Sergeant Kitzhaber Medical Cannabis Act) was recently introduced on September 2, 2021. The bill sought to authorize the possession, distribution, transportation, and use of cannabis for medicinal purposes and deschedule marijuana and all tetrahydrocannabinols from Schedule I to Schedule II. Unfortunately, it failed to pass the committee stage and died on December 5, 2021. 

A new medical marijuana legalization initiative (Idaho Medical Medical Marijuana Act 2022) spearheaded by Kind Idaho is currently gathering signatures ready for Idaho’s 2022 ballot next year. The group has collected over 5,000 signatures of the 65,000 required.

If successful, Idaho patients will be allowed to legally possess up to 4 oz of medical cannabis and grow up to six plants with a “hardship waiver”. 

Currently, penalties for possessing medical cannabis are outlined in Sections 37-2732 and 37-2732C of the Idaho Uniform Controlled Substances Act:

  • Possession of 3 oz or less of medical cannabis or less is punishable by up to 1 year in prison and a maximum $1,000 fine
  • Possession of between 1 oz and 1lb is a felony punishable by up to 5 years in jail and a $10,000 fine
  • Possession and cultivation with the intent to sell or distribute is a felony and punishable by up to 5 years in prison and a maximum $50,000 fine

Recreational marijuana

Like medical marijuana, recreational cannabis is not legal in Idaho under state law. All forms of marijuana and marijuana-derived compounds are listed as Schedule I controlled substances under the state’s Uniform Controlled Substances Act. Under no circumstances can anyone use, possess, sell, purchase, distribute, produce, manufacture, or cultivate marijuana for recreational purposes without the risk of penalty or prosecution. 

Epidiolex 

Following the 2014 US Farm Bill, which allowed the production and cultivation of hemp carrying up to 0.3% THC as part of a groundbreaking pilot program, Idaho state lawmakers passed Senate Bill 1146 in 2015. This bill would have allowed parents and guardians to import or bring CBD oil into the state for children with severe epilepsy. 

Unfortunately, Governor Butch Otter vetoed the bill after passing through the legislature. As an alternative, Butch proposed children with severe intractable epilepsy be allowed to participate in a research study on Epidiolex instead. Epidiolex is a CBD-infused medicinal oral solution for patients with Lennox-Gastaut syndrome (LGS), Dravet syndrome, or tuberous sclerosis complex (TSC).

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

No, like delta-8, you cannot use, possess, sell, distribute, purchase, produce, or manufacture any THC isomers under Idaho state law, including delta-10 THC, THC-O, THCP, or HHC.  

Is CBD legal in Idaho?

Yes, hemp-derived CBD is legal in Idaho, but not like other US states.

Currently, the use, possession, sale, distribution, production, and manufacture of hemp CBD products are allowed in Idaho under state law, provided they carry 0% THC. If the THC content is above 0%, the state classifies it as marijuana and a controlled substance, as verified in published advisory letters to the Idaho Attorney General. Producers must include labels on all CBD products indicating the products are THC-free. 

In contrast, other US states such as California, Texas, and Oregon allow hemp CBD products with up to 0.3% THC. 

Idaho was the last US state to legalize industrial hemp production, processing, and transport, following House Bill 126 on April 16, 2021, signed by Governor Brad Little. 

House Bill 126 came three years after the federal government enacted the Farm Bill in 2018 and a subsequent executive order from Gov. Little addressing interstate transport of hemp in Idaho, as Idaho will begin cultivating and producing hemp as early as spring 2022 once a regulatory system is established. 

Upcoming legislation in Idaho

There is currently no upcoming legislation that could change delta-8’s legality in Idaho. Given the fact that all cannabis bills introduced this year either failed or determined delta-8 as a controlled substance, we don’t expect things to change any time soon. 

Conclusion

Idaho’s stance on delta-8 THC isn’t the least bit shocking. The state’s ultra-conservative political lawmakers vehemently oppose anything to do with cannabis. Just look at the state’s apprehension to provide a legal framework for hemp and hemp-derived substances, as well as its decision to not allow any form of THC in existing CBD products. 

If you live in Idaho and you want to get your hands on delta-8, you’re out of luck.

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