Delta-8 THC is likely legal in Pennsylvania, but state law is unclear.
The state legalized hemp in 2016 – a little ahead of most states – but the law doesn’t exempt hemp from the state’s definitions of “marijuana” or “THC” in the controlled substances list. Because of this, many District Attorneys in the state believe that delta-8 THC is still a controlled substance even if it was extracted from compliant hemp and remains under 0.3% delta-9 THC.
Getting to the bottom of Pennsylvania hemp law is a little bit complicated, because of this, but here’s what you need to know.
Is Delta-8 THC Legal to Sell in Pennsylvania?
Delta-8 THC is apparently legal to sell in Pennsylvania, despite some differing opinions about the interpretation of the state’s hemp law.
Pennsylvania legalized industrial hemp with House Bill (HB) 967, which passed in 2016. This bill defined industrial hemp as, “The plant Cannabis sativa L. and any part of the plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3% on a dry-weight basis.”
This is a little different from the 2018 Farm Bill definition, but the key part of the definition is “any part of that plant, whether growing or not,” which some argue means that it includes delta-8 THC.
The alternative viewpoint has been expressed by the Pennsylvania District Attorney’s Association and others, which is that since delta-8 THC is listed as a controlled substance in the state and when extracted from hemp, delta-8 becomes illegal.
This contradiction really comes down to the interplay between the state’s controlled substances law and HB 967. The state’s controlled substances bill lists tetrahydrocannabinols, including delta-8 THC, and HB 967 doesn’t mention an exemption from the schedules for hemp.
Christopher C. Conner, U.S. District Judge, acknowledged in a 2020 case that the lack of a state-level exclusion from “marijuana” for hemp means that Pennsylvania law has a broader definition of marijuana than federal law.
This would imply that delta-8 THC is illegal, but it would also imply that delta-9 THC – regardless of the concentration or whether it’s sourced from compliant hemp – is also illegal if it is similarly “extracted” from hemp. But nobody seems to make this argument, as both the state’s District Attorney’s Association and the Department of Agriculture acknowledge that “floral extracts” with up to 0.3% delta-9 THC by weight are legal hemp. With no exemption from the controlled substances act’s definition of “tetrahydrocannabinols,” the reasoning should be exactly the same, but this doesn’t appear to be the case.
Lawmakers are also looking to bring in regulations for delta-8 THC, including prohibiting their sale to anybody under the age of 21, after making a similar announcement in 2022 for a bill that would have banned delta-8 outright. Perhaps Senators Judith Swank and Sharif Street, the originators of this bill, should discuss the matter with District Attorneys who still insist that this is already illegal.
Adding to the confusion, the Lancaster County Drug Task Force seized over 7,200 products that contained delta-8 THC and delta-10 THC from 25 stores in June 2023. Prior to the raid, the Lancaster County District Attorney’s Office issued a memo to multiple store owners warning them that delta-8 and delta-10 THC products were still illegal under state law.
Delta-8 THC Legislation Timeline for Pennsylvania
Delta-8 THC has either arguably never been legal in Pennsylvania or it has been legal since July 20, 2016.
There were a couple of attempts to legalize hemp in Pennsylvania before the passage of HB 967. These include Senate Bill (SB) 528 in 2013, which would have legalized marijuana for adults and also exempted “industrial hemp” from its definition, and SB 50 in 2015, which would have created an industrial hemp program in the state.
It wasn’t until July 2016 that the hemp program was established through HB 967. However, there has been no change in the state’s hemp law since then, despite announcements that delta-8 laws are incoming. This may finally change in the 2023 to 2024 legislative session, though.
Following the discussion in the previous section, this means that either delta-8 THC was illegal until 2016, when HB 967 legalized it, or that it has never been legal in the 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 legally added to food in Pennsylvania. However, delta-8 THC edibles are still available to buy in the state.
Delta-8 THC is an impermissible food additive according to the Federal Food, Drug and Cosmetic Act (FD&C Act), and state law doesn’t say anything on the topic. While a statement in state law that hemp does not “adulterate” a food product would make it legal to include hemp ingredients in foods staying within the state, with no such statement, the federal law takes precedence. This means it is illegal to add delta-8 THC to food in Pennsylvania.
Moreover, the PA Department of Agriculture’s FAQ for the hemp program refers consumers and licensees to the FDA’s cannabis and cannabis-derived products landing page for information on the permissibility of cannabinoids in food products.
Can You Buy Delta-8 in Pennsylvania?
Delta-8 THC is available to buy in Pennsylvania from both online sellers and brick-and-mortar stores in the state. However, stores in the state have been searched by police and illegal products have been seized.
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Delta-8 Alternatives You Can Legally Buy in Pennsylvania
As with delta-8 THC, it’s likely that alternatives such as delta-10 THC and HHC are legal in Pennsylvania, but it’s unclear how the law should be interpreted. However, there seems to be no dispute that hemp can legally contain up to 0.3% delta-9 THC, so hemp delta-9 products are apparently legal in the state.
Are There Age Restrictions on Delta-8 THC Products?
Pennsylvania hasn’t (yet) passed a bill to regulate delta-8 THC products, and so there are technically no age restrictions on purchase. However, it is common for stores to only sell intoxicating products to adults aged 21 or over.
Age restrictions for delta-8 THC is one of the priorities for a bill likely to be introduced in the 2023 – 2024 session, but this is neither law nor even available as a proposed bill at the time of writing (August 2023).
Can You Consume Delta-8 THC in Public in Pennsylvania?
Pennsylvania has no restriction on public use of delta-8 THC, other than laws prohibiting smoking in indoor public places.
Since HB 967 didn’t include any discussion of where industrial hemp products may be used, there is no actual law about consuming delta-8 THC in public. The main relevant law is the Clean Indoor Air Act of 2008, which bans smoking in enclosed public places, and defines smoking in a way that the smoking of delta-8 THC would be included.
Technically, you can use delta-8 THC edibles anywhere and you can smoke or vape it anywhere that you can smoke cigarettes.
This isn’t to say that you should, though. If you smoked delta-8 THC in a smoking area, it’s likely that other people and possibly the owners of the establishment would believe you were smoking marijuana. You may wish to argue your case – since by law you could be considered to be allowed to do this – but Pennsylvania delta-8 law is unclear enough that it might be an uphill battle.
Can You Drive Under the Influence of Delta-8 THC in Pennsylvania?
It’s illegal to drive under the influence of delta-8 THC in Pennsylvania.
RELATED: Can Delta-8 THC Get You High?
Pennsylvania’s DUI law states that it’s illegal to drive a motor vehicle in the state if any amount of a Schedule I controlled substance is in your blood, if metabolites of a controlled substance are in your blood (beyond a threshold value) and if you’re under the influence of any drug which impairs your ability to drive. In short, since delta-8 THC is still listed in the Controlled Substances Act, and since it definitely will impair your driving ability, you cannot drive with delta-8 THC in your blood. The state also sets a limit of 1 ng/ml for THC’s metabolites, which most regular delta-8 users would easily exceed.
RELATED: How Long Is Delta-8 THC Detectable on a Drug Test?
The punishment in the first instance includes between 72 hours and six months imprisonment, a fine of $300, mandatory attendance of an alcohol highway safety school program and license suspension for up to 18 months.
Can You Travel to Pennsylvania With Delta-8?
The legal situation in the state is not completely clear, but if delta-8 THC is considered legal in Pennsylvania, it also would be legal to bring it into the state.
Provided that hemp delta-8 THC is legal in Pennsylvania, which it appears to be despite unclear state law, you can travel to the state with delta-8 THC products. The Transport Security Administration (TSA) says that you can travel with compliant hemp products (i.e. with less than 0.3% delta-9 THC on a dry weight basis) and stresses that they aren’t especially interested in finding marijuana, although they do have to report violations of the law.
It’s a good idea to bring a Certificate of Analysis (COA) for the products you’re traveling with, to prove that they are Farm Bill compliant.
It’s likely that the biggest issue you could have traveling to Pennsylvania with delta-8 THC is someone believing it’s a controlled substance in the state even if it’s within federal guidelines for hemp. This is unfortunately difficult to control at the moment because there is little clarity in state law.
Closing Thoughts: The Future for Delta-8 in Pennsylvania
State lawmakers still have delta-8 THC in their sights for the 2023-2024 legislative session, with an announcement from Senators Schwank and Street in February 2023 promising a bill that limits delta-8 THC sales to adults (21 and over) and requires testing and accurate labeling.
The same senators announced a similar bill in the 2021-2022 session, with the intent to outright ban delta-8 THC, but nothing came of this announcement. However, the senators continuing interest in the issue means that we’ll likely see a bill proposed in the coming year. Additionally, with so much opposition to delta-8 THC in the state, it’s likely that any reasonable regulations (like those proposed in this year’s announcement) will pass into law.
Additionally, the state legislature has recently introduced a bi-partisan adult-use cannabis bill. This includes all THCs (including delta-8) in its definition of cannabis, and if it passes it would mean delta-8 THC could only be sold under the adult use program. Like the other bills, this would also increase the regulations and requirements for delta-8 THC in Pennsylvania.
