Closing the Loophole: Delta-8 THC Is Illegal in North Dakota

North Dakota banned delta-8 THC in 2021, and hasn’t looked back.

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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 a decade. At CBD Oracle, he focuses on research-driven deep dives...

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Fact checked byNeil Willner

Fact checked by

Neil Willner

Neil M. Willner is an 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 provides counsel...

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Delta-8 THC flower product sold in North Dakota
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North Dakota may have legalized delta-8 THC back in 2019, but it only had a couple of years of being legal (ish) before politicians passed more bills limiting the cannabinoid.

In 2021, the state made it illegal to convert CBD to delta-8 or sell products made that way, which includes the vast majority (if not all) of delta-8 products. In 2023 they just went the whole hog and banned delta-8 THC straight out. This means that in North Dakota, delta-8 THC isn’t “hemp” under the law, and that if you’re caught with it, you’ll be punished as if you had ordinary marijuana.

Here’s a run-down of the relevant state laws.   

No, delta-8 THC is not legal to sell in North Dakota. The law forbids hemp licensees from creating delta-8 THC from CBD, and also applies the 0.3% THC limit to all THCs, not just delta-9. Soon, the law will explicitly ban delta-8 in all situations.

House Bill (HB) 1045 made almost all delta-8 THC illegal in North Dakota. Firstly, the law changed the THC limit for hemp (Section 1/page 1, lines 9-24) so that it applies to all THCs, including delta-8. Secondly, the bill made it illegal for a licensee to convert one cannabinoid into another through isomerization (Section 4/page 2, lines 19-25) or to sell products made that way.

It’s important to note that under this rule, if the product contains more than 0.3% of any THCs combined, it is no longer “hemp” and becomes a controlled substance in the state, so possession is also illegal. When SB 2096 goes into effect (probably in August 2023), all products containing delta-8 THC are excluded from the definition of “hemp” and are not legal (e.g. even if it was produced naturally by a hemp plant).

Delta-8 THC Legislation Timeline for North Dakota

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Delta-8 THC was legal in North Dakota for a couple of years, from March 2019 to April 2021, before HB 1045 effectively made it illegal to manufacture and sell. SB 2096 – coming into effect this year – closes the remaining potential loopholes.

On December 20, 2018, the federal government enacted the groundbreaking Agriculture Improvement Act (Farm Bill) legalizing hemp production and cultivation across 50 US states, as well as allowing the sale, distribution, and transport of hemp-derived products (including delta-8) carrying no more than 0.3% THC. 

Following the passage of the Farm Bill, North Dakota signed HB 1349 into law in March 2019, creating a regulatory framework for a commercial hemp program, overseen by the North Dakota Department of Agriculture. 

On April 26th, 2021, State Governor Doug Burgum signed HB 1045 into law. This bill amended North Dakota’s hemp regulation bill, redefining THC to include not only delta-9 but all of its structural, optical, or geometric isomers, including delta-8 and delta-10 THC. It also prohibits processors from creating products through chemical isomerization, a simple process where delta-8 is converted from isolated CBD using specialized chemicals in a laboratory setting. 

On April 24th, 2023, Governor Burgum signed Senate Bill (SB) 2096 into law. This bill extends the restrictions of HB 1045, and explicitly excludes (section 1.5(b)(3), page 2) products containing delta-8 THC and products containing chemically derived cannabinoids like THCO, HHC, and THCP from the definition of “hemp.” This means all products containing delta-8 THC will become a controlled substance again in the state when it takes effect, likely on August 1st pending a response from the Secretary of State.

Is Delta-8 Legal at the Federal Level?

The legal status of delta-8 THC at the federal level is not clear. 

RELATED: Delta-8 THC Legality by State

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 cannot be added to food in North Dakota. Firstly, federal law prohibits adding delta-8 THC to food in interstate commerce, and secondly, North Dakota state law prohibits all products containing delta-8 THC anyway.

The federal Food, Drug and Cosmetic Act (FD&C Act) establishes many important rules, but notably for delta-8 THC, it makes it illegal to “adulterate” foods with ingredients that are not Generally Recognized As Safe (GRAS). The FDA points out that delta-8 THC is not GRAS, so it cannot be used in foods in interstate commerce.

This basically means that the only way adding delta-8 THC to a food is legal is if the state has specifically passed a law stating that adding hemp does not adulterate foods. In the case of North Dakota, the state doesn’t even allow delta-8 at all, and in fact SB 2096 explicitly says that products have to comply with the FD&C Act.

Can You Buy Delta-8 in North Dakota?

Unfortunately, you cannot legally purchase delta-8 in North Dakota. Under state law, the sale of delta-8 products is prohibited unless they’re created using natural delta-8 (which none are) and the total THC is under 0.3% of the dry weight. When SB 2096 goes into effect, there will be no possibility of legal delta-8 THC products.

Delta-8 Alternatives You Can Legally Buy in North Dakota

No, you cannot purchase delta-10, THC-O, HHC, or any other THC isomer in North Dakota under state law. No online vendor or physical retail store can legally sell products containing delta-8 THC, THC-O, HHC, THCP or any “chemically derived cannabinoids.”

Additionally, since most hemp delta-9 THC products are also made through isomerization, many of these would also be illegal in North Dakota.

Are There Age Restrictions on Delta-8 THC Products?

Since delta-8 THC essentially can’t legally be sold to anyone under North Dakota law, there are no specific age restrictions in place.

Can You Consume Delta-8 THC in Public in North Dakota?

Medical marijuana plant

It’s unlikely that you could consume delta-8 THC in public in North Dakota legally, unless you found a product with less than 0.3% THCs and consumed it in an area where smoking is allowed, and provided it’s before SB 2096 comes into effect.

North Dakota has a ban on smoking in enclosed public places and places of employment, and defines “smoking” so it covers all smoked plant material, as well as vaping. However, the bigger problem for public delta-8 THC use is that most commercial delta-8 THC products would be considered marijuana in the state. This means that you could be arrested for possession.

The only way you could legally consume delta-8 THC in public is if the product contained less than 0.3% combined THC and you didn’t smoke in enclosed public spaces. However, this is unlikely to happen and you may have a difficult time justifying yourself in the eyes of the law. Plus, SB 2096 will come into effect in summer 2023 and will completely remove this possibility.

Can You Drive Under the Influence of Delta-8 THC in North Dakota?

You can’t drive under the influence of delta-8 THC in North Dakota.

The driving under the influence law in North Dakota makes general reference to “any drug or substance” that can render you incapable of safely driving. This includes delta-8 THC by default, even if it was legal in the state.

The punishment for a first offense is a fine of at least $500 and referral to an addiction evaluation at a licensed treatment center.

RELATED: Does Delta-8 Get You High?

Can You Travel to North Dakota With Delta-8?

No, you cannot cross North Dakota’s state borders with hemp-derived delta-8 products in your possession. Hemp-derived delta-8 is an illegal prohibited controlled substance under state law. 

Closing Thoughts: The Future for Delta-8 in North Dakota

Recreational marijuana flower

The North Dakota government has already basically crushed the delta-8 THC industry, so it’s unlikely there are any changes on the horizon. The most recent change to the state’s hemp law is SB 2096, and this bill leaves absolutely no room for legal delta-8 THC. While there have been efforts to legalize marijuana in the state in recent years – and it may be raised as an issue again this year – there probably won’t be anything else relevant to delta-8 THC in the state.

Even if the federal government bans the process used to create the cannabinoid, North Dakota has already done it.

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