Delta-8 THC has been a controversial topic since products started to appear on shelves, but as in many states and under federal law, delta-8 THC is legal in New Jersey.
While the state hasn’t passed any restrictions that would go beyond the limits of the federal Farm Bill, it’s possible that in the near future, delta-8 will be regulated alongside marijuana in the state’s adult-use program. For now, delta-8 THC is legal, with only limitations on things like smoking in public and driving under the influence applying to the cannabinoid.
Here’s everything you need to know about delta-8 THC in New Jersey.
Is Delta-8 THC Legal to Sell in New Jersey?
Delta-8 THC is legal in New Jersey, following the passage of the New Jersey Hemp Farming Act in 2019.
The New Jersey Hemp Farming Act defines hemp in line with the 2018 Federal Farm Bill, stating that hemp is Cannabis sativa L., along with all its cannabinoids, derivatives and extracts, provided the delta-9 THC concentration doesn’t exceed 0.3% on a dry weight basis. The intention of the bill is “to move the State and its citizens to the forefront of the hemp industry.”
Since the law doesn’t make any statement about delta-8 THC explicitly, it is considered legal provided that the delta-9 THC level remains within the legal limit.
Delta-8 THC Legislation Timeline for New Jersey
Delta-8 THC was legalized following the introduction of the New Jersey Hemp Farming Act, which replaced the New Jersey Industrial Hemp Pilot Program.
New Jersey’s Industrial Hemp Pilot Program was established with A1330/S2491, which was approved in November 2018. The bill defined hemp in essentially the same way as the Federal Farm Bill, with a major difference being that this established a pilot program. Under this, anybody interested in growing, harvesting, possessing, buying or selling industrial hemp would have to be licensed by the Department of Agriculture.
The New Jersey Hemp Farming Act repealed and replaced this pilot program in August 2019, stating explicitly that hemp – and any products and derivatives made from it – are not controlled substances. This established the New Jersey hemp industry and effectively permitted the sale of delta-8 THC products.
Is Delta-8 Legal at the Federal Level?
The legal status of delta-8 THC at the federal level is not clear.
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The industry argues that the 2018 Farm Bill legalized hemp, defining the term as the cannabis plant and any part of it, including “all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, […] with a delta-9 [THC] concentration of not more than 0.3 percent…” Since delta-8 THC is a naturally occurring cannabinoid in hemp, it is therefore legal. The 9th Circuit Court of Appeals agreed with this assessment, albeit on a limited record.
However, recent statements indicate that the DEA has a vastly different opinion of the legality of hemp-derived delta-8 THC, if converted from CBD. Terence Boos, the chief of DEA’s Drug and Chemical Evaluation Section, said in a letter in 2021 that modifying CBD to produce delta-8 THC makes it a controlled substance, however, he offered no citation in support of this. At a conference in May 2023, he indicated that the DEA will clarify via rulemaking that any cannabinoid produced by chemical synthesis is an illegal controlled substance.
This proposed rule has not yet been released.
Can Delta-8 THC Be Added to Food?
Delta-8 THC can be added to food under New Jersey law, but not federal law. This means that sales of delta-8 THC edibles within the state are broadly permitted, but interstate sales could trigger FDA enforcement.
At the federal level, the FDA considers delta-8 THC to be an impermissible food additive under the federal Food, Drug and Cosmetic Act. However, New Jersey’s Hemp Farming Act states that products containing hemp-derived compounds are “to be considered foods, not controlled substances or adulterated products.”
This creates an apparent contradiction between federal and state law, similar to the federal prohibition on cannabis. The FDA is hesitant to enforce its rules on cannabis products because they largely remain intrastate. However, hemp is allowed in interstate commerce, which makes products that contradict federal rules a bigger problem.
In short, the FDA has sent warning letters when it comes to hemp-derived cannabinoids in food products but not cannabis edibles because cannabis products stay at the state level. For New Jersey, this basically means that having delta-8 THC in food products within the state should technically be fine, but any interstate commerce is likely to attract the attention of the FDA.
Can You Buy Delta-8 in New Jersey?
Since delta-8 THC is legal in New Jersey, you can legally buy delta-8 THC products in the state. As well as physical stores, you can order delta-8 THC online.
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Delta-8 Alternatives You Can Legally Buy in New Jersey
Since the New Jersey Hemp Farming Act legalized hemp in line with the definitions in the federal Farm Bill, and no further restrictions have been passed, products such as hemp delta-9 THC, HHC, delta-10 THC and other natural hemp products are legal in the state.
Unlike other states, New Jersey has not instituted a restriction on hemp products produced via isomerization or other chemical reactions. In short, any naturally-occurring hemp cannabinoid is legal provided the delta-9 THC concentration is below 0.3% by dry weight.
RELATED: How Does Delta-8 Compare to THC?
Are There Age Restrictions on Delta-8 THC Products?
Under the law as it is currently written, there are no explicit age restrictions on hemp products in New Jersey. While the state’s adult-use marijuana law stipulates a minimum age of 21, “hemp” is excluded from this definition and there is no age restriction in the hemp law.
Can You Consume Delta-8 THC in Public in New Jersey?
There are no laws addressing delta-8 use in public specifically, but based on the adult-use cannabis law it’s unlikely that public consumption would be tolerated.
New Jersey’s Cannabis Regulatory, Enforcement Assistance and Marketplace Modernization Act explicitly states that cannabis cannot be smoked, vaped or aerosolized in any public place where smoking tobacco is not allowed, nor in any indoor public place. The Smoke-Free Air Act specifies a fine of at least $250 for the first offense.
Although this law technically doesn’t apply to hemp products, any smoking in a pre-designated non-smoking location is likely to yield the same $250 fine. In fact, if you’re smoking delta-8, it could easily be assumed to be cannabis anyway.
Can You Drive Under the Influence of Delta-8 THC in New Jersey?
Driving under the influence of delta-8 THC is illegal in New Jersey.
New Jersey’s driving while intoxicated law applies to any “intoxicating liquor, narcotic, hallucinogenic or habit-producing drug,” and so delta-8 THC would be included in this. The key point is that delta-8 is intoxicating, and driving while intoxicated is illegal. The fact it’s legal doesn’t protect you, in the same way that it’s illegal to drive under the influence of alcohol even though it’s freely available.
RELATED: Is Driving High Dangerous?
Can You Travel to New Jersey With Delta-8?
You can technically travel to New Jersey with delta-8 THC, since it’s legal in the state and apparently permitted as “hemp” under federal law. Bringing the product’s Certificate of Analysis (COA) as proof of its legality is a wise move in case you run into issues.
According to the Transportation Security Administration (TSA), you can bring delta-8 THC on flights. They explicitly point out that hemp products are exempted from restrictions on bringing marijuana, but if they find any illegal substance it will be referred to law enforcement. Since delta-8 THC is legal in New Jersey, provided you’re traveling from somewhere it’s also legal, and you can provide evidence of what it is, you can travel with delta-8.
The only thing to keep in mind is the disclaimer on the bottom of the TSA’s page: “The final decision rests with the TSA officer on whether an item is allowed through the checkpoint.” In other words, while it’s technically permitted to bring, it’s really down to the individual officer whether they believe you or think it’s acceptable.
Closing Thoughts: The Future for Delta-8 in New Jersey
The future of delta-8 THC in New Jersey is somewhat uncertain thanks to Senator Declan O’ Scanlon and others, who take issue with the lack of product safety standards and the absence of age restrictions. They have introduced legislation which gives the Cannabis Regulatory Commission the ability to regulate hemp-derived cannabinoids, and would impose age restrictions, lab testing requirements, restrictions on marketing and more. This isn’t a proposed “ban” of delta-8, but instead a proposal that it meets similar standards to regulated marijuana products.
However, there hasn’t been progress on this bill since it was introduced in January 2023 and its companion assembly bill was introduced in February (as of time of writing).
Local municipalities are also growing frustrated with the lack of action by state legislatures to address the issue. On April 3, 2023, the City of Hoboken adopted a resolution requesting that the “State of New Jersey ban Delta-8 in order to provide clarity, safety, and ease the burden on local law enforcement.”
State lawmakers are also paying attention, and introduced A5440 in May 2023 (followed by companion bill S3944, co-sponsored by O’ Scanlon). This bill takes two key steps to prevent delta-8 THC products from being sold as hemp. Firstly, it redefines hemp to include a 0.3% limit on delta-8 THC as well, and secondly, it explicitly includes delta-8 THC converted from CBD (or other hemp components) in the state’s controlled substances bill.
If this passes into law (they are currently going through the committee stage), then delta-8 THC couldn’t be sold as hemp in the state, and would only be available through the state’s regulated marijuana program. Overall, it’s likely that these and similar efforts will lead to restrictions on delta-8 THC in New Jersey within a year.
