Fact-checked by Neil Willner, Esq.
Delta-8 THC is legal in North Carolina, but that doesn’t mean that there are no rules governing the cannabinoid in the state. In fact, sellers in North Carolina have received warning letters from the FDA for putting delta-8 THC into food, despite state law suggesting this would be OK. So what are the actual laws surrounding delta-8 in North Carolina, and are there any changes on the horizon?
We’ve put together a run-down of the key facts.
Is Delta-8 THC Legal to Sell in North Carolina?
Delta-8 THC is legal in North Carolina, following the state’s efforts to keep their law in line with the federal government.
The state got a permanent hemp program when SB 455 was passed in 2022. As earlier versions had too, the law includes the federal limit of 0.3% delta-9 THC by dry weight in its definitions of hemp and hemp products. Since there is no further clarification about allowed cannabinoids or processing (e.g. some states ban isomerization reactions), the bill effectively legalizes delta-8 THC in North Carolina, provided it comes from hemp.
We asked Phil Dixon, Jr., Teaching Assistant Professor at the University of North Carolina School of Government, who agreed, “Yes, in my view delta-8 is legal in NC.”
He continued, “Because delta 8 is an isomer product that can be derived from legal hemp, a straightforward reading of the law strongly suggests that it is legal. One could make arguments that delta 8 and similar products are an illegal analogue controlled substance, or that it is properly considered as an illegal synthetic THC. At this point in time, it does not appear that anyone is making those arguments in state criminal court.”
Delta-8 THC Legislation Timeline for North Carolina
Delta-8 THC has technically been legal in North Carolina in some form since 2015, but a permanent hemp program was only established in 2022.
Industrial hemp was first legalized in North Carolina with the 2015 Industrial Hemp Bill, but this was only a pilot program. After the 2018 update to the federal Farm Bill came into effect, North Carolinian legislators made several attempts (e.g. SB 352 in 2019 and earlier versions of SB 315, which passed in 2020) to establish a longer-term hemp program. However, these got caught up in controversy over smoke-able hemp and neither ended up achieving their goals.
However, the deadlock was finally broken in 2022, when a bill (SB 455) which was first filed in 2021 finally made it to the Governor’s desk with hemp rules still in place. This bill essentially defines hemp and hemp products and then excludes them from the state’s Controlled Substances Act’s definition of marijuana.
Is Delta-8 Legal at the Federal Level?
While it isn’t 100% clear and unambiguous, it’s generally accepted that the 2018 Farm Bill legalized delta-8 at the federal level.
RELATED: Delta-8 THC Legality by State
The legal status of delta-8 THC derived from hemp has still not been fully fleshed out, but the prevailing argument is that the 2018 Farm Bill legalized delta-8 THC because it is naturally occuring in the hemp plant and it is a derivative or extract of the hemp plant. Indeed, the 9th Circuit Court of Appeals determined its legal status, albeit on a limited record.
Despite generally legalizing hemp, the 2018 Farm Bill expressly preserved the FDA’s authority to regulate hemp in food products and dietary supplements, under the Federal Food, Drug and Cosmetic Act. Under that authority, the FDA has stated that delta-8 THC is an impermissible food additive and not an approved ingredient for food.
It’s worth noting that the Farm Bill defined hemp as a cannabis plant with less than 0.3% delta-9 THC by dry weight, so any delta-8 hemp product would have to abide by that limit.
Can Delta-8 THC Be Added to Food?
Delta-8 THC is considered an impermissible food additive by the FDA, and current state law in North Carolina doesn’t really address hemp cannabinoids in foods.
The FDA sent a warning letter to Kingdom Harvest in North Carolina, noting (among other things) that the company sold a food “adulterated” with delta-8 THC, which it doesn’t allow. State lawmakers have included a provision in SB 521 (§ 106-139.2) that would make it legal to add hemp to food (if the bill is passed), but the federal government is already clear on this point and companies in the state have suffered the consequences.
Can You Buy Delta-8 in North Carolina?
Delta-8 THC is available to buy in North Carolina, in the form of gummies, vapes, flower, tinctures and other edibles.
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Since SB 455 didn’t include any provisions banning smokeable hemp, or indeed any specific rules about forms of products at all, essentially any type of delta-8 THC can be found in North Carolina. As usual, the only requirement is that the delta-9 THC level remains under 0.3% by dry weight.
Delta-8 Alternatives You Can Legally Buy in North Carolina
You can also buy delta-10 THC, hemp-derived delta-9 THC and HHC in North Carolina. These are all legal for the same reason as delta-8: if they come from a hemp plant and contain less than 0.3% delta-9 THC by dry weight, they are legal in the state.
RELATED: Delta-8 vs. Delta-9 THC (Benefits, Effects, Legality)
Are There Age Restrictions on Delta-8 THC Products?
Despite many sources claiming that you need to be 18 or 21 to purchase hemp products in North Carolina, the law has no age restriction. The only age restrictions are instituted by the sellers themselves.
As University of North Carolina hemp expert Phil Dixon has pointed out before, SB 455 does not include any age restrictions on who can purchase hemp. We asked Phil about this:
“There is no age limit on hemp products whatsoever. I don’t know how or why this mistaken belief is so prevalent. If you scour our relatively skeletal laws on hemp, you won’t find any age limit. Federal law likewise has no mention of an age limit to purchase, possess, manufacture, or distribute. As you are likely aware, just about every reputable hemp shop sets an age limit for customers. It seems common to limit CBD products to 18 and up, and to limit intoxicating hemp products to 21 and up. But that’s store policy, not a legal requirement.”
In short, the only thing preventing youth from accessing intoxicating hemp products are the stores making money from them. Phil adds, “I get calls all the time from officers and prosecutors in utter disbelief that possession of (for instance) delta 8 gummies by a middle schooler isn’t a crime. Under current law, it is not.”
He also addresses another point of confusion:
“In the interest of thoroughness, I will say that federal law prohibits [youth] possession of tobacco vape products and I think a lot of retailers and people in the business have assumed that applied to all vape products. The way I read it, the federal age limit there only applies to products with nicotine in them, so something like a CBD or delta 8 vape wouldn’t be covered.”
Can You Consume Delta-8 THC in Public in North Carolina?
Technically there are no restrictions on where you can consume delta-8 THC gummies in North Carolina, or any non-smoked product. However, you can only smoke where smoking cigarettes is allowed.
North Carolina’s Smoke-Free Restaurant, Bars and Lodging Law is the only real legal limitation on where you can use delta-8 THC in the state. That said, you shouldn’t exactly expect to be able to smoke delta-8 anywhere you can smoke tobacco, because it is hard to tell apart from weed and some people may take issue with it. By the law, though, there’s no restriction on where you can use hemp.
Can You Drive Under the Influence of Delta-8 THC in North Carolina?
No, you can’t drive under the influence of delta-8 THC in North Carolina.
While the hemp law doesn’t discuss rules while driving, the impaired driving law applies to any “impairing substance.” This means that delta-8 THC is included in this by default, since it does impair you (albeit less than delta-9).
Phil Dixon points to a blog post written by a colleague about the challenges of determining “appreciable impairment,” adding:
“As she notes in her article, one can be impaired on all kinds of things, whether they are considered illegal drugs or not, and the state need not prove the specific substance. They just must present sufficient evidence that the defendant ingested an impairing substance and became appreciably impaired as a result. So, to make a long story short, yes, you can get a DWI from using delta 8 and similar products. It might be more difficult to prove than a traditional alcohol case, but it’s certainly possible.”
The minimum punishment is a fine of up to $200, and put in jail for between 24 hours and 60 days. In some cases, the judge will suspend the jail time and replace it with community service.
Can You Travel to North Carolina With Delta-8?
Traveling to North Carolina with delta-8 THC should be fine, provided you travel from a state where it’s legal and also bring the product’s Certificate of Analysis (COA) along with you.
The Transport Security Administration (TSA) says that hemp products are exempted from the ban on traveling with marijuana. They also stress that the final decision is with the officer on the border at the time, so there are certainly no guarantees. It’s better to bring the COA with you as proof of what you have, if you can.
Closing Thoughts: The Future for Delta-8 in North Carolina
In April 2023, two bills were introduced into the North Carolina General Assembly: Senate Bill 521 and House Bill 563. These bills seek to regulate hemp-derived cannabinoid products, including products containing delta-8 THC in different ways.
- SB 521 proposes a few key changes, notably making the 0.3% concentration limit apply to “any intoxicating cannabinoid except cannabidiol” and specifying that only naturally-occurring cannabinoids can be classed as hemp.
- HB 563 is more about creating regulations for things like lab testing of hemp products and setting up a licensing scheme, but would also set a minimum age of 21 for hemp products and limit ingestible products to 75 mg of hemp-derived cannabinoids per serving.
SB 521, in particular, would severely limit delta-8 THC products to the point of effectively banning anything that could realistically be intoxicating. If either of these bills becomes law, the delta-8 industry would change, but SB 521 would decimate it.
Despite all this, it’s worth noting that marijuana itself is only a schedule VI drug in the state. This means that if you have less than half an oz, the only penalty is a civil infraction, with a fine up to $200. Although this isn’t directly relevant to delta-8, it gives you an idea of the state’s priorities when it comes to marijuana: in short, they aren’t particularly interested in low-level offenses.
Phil Dixon says that despite some good ideas, it’s hard to tell what the near future will bring in the state:
“I think an age limit and restrictions on use or possession in places like schools is a no brainer from a policy perspective, but I’ve also been saying that for years. I hear the medicinal MJ bill has good odds of passing this year, but I have no idea about the others. It seems likely we will see additional regulation and that the legislature is thinking hard about it, but where that lands is anyone’s guess.”