South Carolina Thinks It Banned Delta-8 THC (But It Didn’t)

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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 10 years. He has a MS in Theoretical Physics from Uppsala...

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Fact checked byNeil Willner

Fact checked by

Neil Willner

Neil M. Willner is an experienced cannabis 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...

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Delta-8 THC flower for sale in South Carolina
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The law in South Carolina suggests that delta-8 THC is legal, but the state’s Attorney General has a different interpretation. A quick Google search will return many results claiming that delta-8 is legal in the state, but the real answer is much more complicated. To understand what’s really going on here, you need to learn about South Carolina’s implementation of the 2018 Farm Bill and what that means for the definition of “THC” and “marijuana” in the state.

The short answer is: delta-8 THC technically isn’t banned in South Carolina, but state agencies, the cops and courts may still disagree.

Delta-8 THC is legal to sell in South Carolina, following the passage of the Hemp Farming Act, but there is some disagreement on this point from law enforcement.

South Carolina passed the Hemp Farming Act (H3449) in March 2019, which legalized industrial hemp in line with the limits specified in the federal Farm Bill. This means that any Cannabis sativa L. plant, any parts of it (including all extracts and cannabinoids) “with the federally defined THC level for hemp” (i.e. 0.3% delta-9 THC by dry weight) is legal in the state.

However, the South Carolina Attorney General’s Office issued an opinion in October 2021, stating that it believed delta-8 THC is illegal under South Carolina law, essentially because THCs remain on the state’s controlled substances list. This opinion points out that “all isomers” of THC are Schedule I controlled substances, unless specifically exempted, and then also points out that the Hemp Farming Act creates one such exemption. Despite attempting to argue the opposite, this suggests that delta-8 THC is legal provided that it meets the definition of hemp.

This opinion was issued in response to the Police Chief Mark Keel, so regardless of the “correct” interpretation, the South Carolina Law Enforcement Division’s position is also that delta-8 THC is illegal in the state. In line with this opinion, the Department of Agriculture issued guidance on its website, stating that the “Hemp Farming Act does not provide an exception for, and does not legalize, delta-8 THC.”

It is important to note, though – as the opinion points out – that this would have to be determined on a case-by-case basis and would likely have to go to court. The Attorney General’s office opinion concludes that (emphasis added): “We believe a court would hold that the Hemp Farming Act does not provide an exception for, and does not legalize, delta-8 THC or any other isomer of THC in itself.” 

The key point is that this opinion is not a law in itself; it is simply a reading of the law which may or may not be deemed valid by a court. Regardless, there have been raids on companies selling delta-8 THC in line with these provisions. In short, despite the apparent clarity of the law, state Attorney Generals and police officers following recommendations might still treat it as if it’s illegal.

Michael Sims, CEO of Crowntown Cannabis, the store that was raided by cops in January 2023, commented to CBD Oracle that, “It was the worst time of my life emotionally and financially. Our lives are totally invested in our business and it’s stressful that it can all go bust with the strike of a pen.”

Michael points out how he and other store owners made every effort to comply with the law:

“We were advised by our lawyer that it was safe to sell hemp flower and thought we were in the right. Other stores around us thought the same thing. It was known to law enforcement that we were selling hemp flower; they said raw flower must be processed, packaged, and trimmed in order to be compliant and that’s what we did.”

But ultimately it didn’t matter:

“The undercover agent came into our store and asked if we sell hemp flower. One of our employees commented that the flower is “fire” and the undercover agent thought that was slang for marijuana. But everybody knows that “fire” means that it’s good quality; people even refer to clothing as “fire”.”

RELATED: Delta-8 THC Legality by State

Delta-8 THC Legislation Timeline for South Carolina

Delta-8 THC was illegal in South Carolina after the passage of the state’s Controlled Substances Act, but was (debatably) made legal by the Hemp Farming Act.

While delta-8 THC wasn’t named specifically, South Carolina’s list of controlled substances does include THC and points out that isomers are included, so this would make delta-8 THC illegal. However, in 2019, the Hemp Farming Act was passed, which – despite protests from the Attorney General’s office – did remove the THC in hemp from the definition of marijuana.

There has been no change in delta-8 THC’s legal status since this date. This means that in the Attorney General’s interpretation of the laws, delta-8 THC has been illegal since THC was added to the state’s controlled substances act. By a reading of the law favored by other experts, delta-8 THC was illegal in the state up until 2019, when the Hemp Farming Act (likely unintentionally) legalized it.

Can Delta-8 THC Be Added to Food?

It’s unlikely. Delta-8 THC is an impermissible food additive under the federal Food, Drug and Cosmetic Act (FD&C Act). The Hemp Farming Act does include foods in its definition of “hemp product,” though, so the law is in something of a gray area.

Moreover, the state’s Department of Agriculture has expressly said that it cannot allow foods with delta-8 THC to be manufactured within the state because delta-8 THC is an unapproved food additive under the FD&C Act.

In practice, there are foods with delta-8 THC openly for sale in South Carolina, though, so this apparently hasn’t caused an issue for many sellers in the state thus far. However, this could change in the future.

Can You Buy Delta-8 in South Carolina?

You can buy delta-8 THC products in South Carolina, with CBD and delta-8 stores located across the state and most online sellers delivering to residents too.

RELATED: The Best Delta-8 THC Brands

Delta-8 Alternatives You Can Legally Buy in South Carolina

Regardless of the legal status of delta-8 THC, hemp-derived delta-9 THC is legal in South Carolina.

While it’s possible for the state Attorney General’s Office to argue that the Hemp Farming Bill doesn’t legalize delta-8 THC, it’s quite impossible to argue that delta-9 THC isn’t legal up to the 0.3% limit. Since this is written into the state’s definition of hemp, this is not remotely ambiguous and would have to be addressed in future legislation to be banned.  

Are There Age Restrictions on Delta-8 THC Products?

Although there aren’t any legal age restrictions, stores tend to limit delta-8 THC products to customers aged 21 or over. However, it’s important to note that this age restriction is not firmly established in law and may not always be followed.

Can You Consume Delta-8 THC in Public in South Carolina?

Smoking delta-8 THC in public in South Carolina is not a good idea, but it’s technically possible in outdoor areas where tobacco smoking is allowed.

South Carolina’s Clean Indoor Air Act specifies that it applies to smoking and “lighted smoking material in any form,” so it would also apply to smokeable hemp products. However, the law isn’t as strict as in many places in the country, and smoking is allowed in some indoor areas such as bars, depending on local laws and the establishment’s policy. Overall, around 40% of South Carolinians live in areas with smoke-free ordinances.

The situation for delta-8 is different because marijuana is illegal in the state, even for most medical uses, and delta-8 is believed to be illegal by many in positions of power. So even if you’re smoking in-line with local smoking ordinances, you could still get in trouble. If you’re indoors, it’s even more likely someone will have an issue with it.

Can You Drive Under the Influence of Delta-8 THC in South Carolina?

Driving under the influence of delta-8 THC is not allowed in South Carolina.

The state’s law on driving while intoxicated focuses on impairment by any substance, without naming specific “offending” substances. In other words, it doesn’t matter to the law if you’re high on delta-9, delta-8 or just plain drunk, you’re breaking the law if you’re in control of a motor vehicle in an impaired state.

RELATED: How Long Does Delta-8 THC Stay in Your System?

First offenses are punishable by a $400 fine, or a jail sentence of between 48 hours and 30 days, or possibly a minimum of 48 hours of community service.

Can You Travel to South Carolina With Delta-8?

Although it should technically be fine to travel to South Carolina with delta-8 THC, it is not a good idea.

Delta-8 isn’t banned at the federal level, and South Carolina – however much they may protest – essentially copied the federal law. However, the Attorney General’s office believes that delta-8 is illegal, and many police officers take this at face value.

Michael Sims, whose store was raided because of delta-8, pointed out that “It’s really uncertain and nobody provides clear guidance. We’ve contacted lawyers, state agencies, and other people in the industry but everybody gives us a different answer. Aside from the definition of hemp in the Farm Bill, there’s no guidance on what we can or cannot sell.”

In other words, even if the law technically makes delta-8 legal in South Carolina, you could still easily run into issues if you’re caught bringing some into the state. Unless you want to try to win this argument with a cop, it’s better to just leave it at home.

Closing Thoughts: The Future for Delta-8 in South Carolina

Although there is no legislation addressing hemp or delta-8, there are two bills addressing marijuana, recreationally (S211) and medically (H 3486). These would both increase the availability of marijuana to adults, but it’s possible that if either bill went ahead, delta-8 would be regulated under the appropriate program instead.

For now, though, there is nothing directly addressing delta-8 THC and so it’s likely that it will remain in its current state of limbo until somebody fights the Attorney General’s interpretation in court. And all the while, stores, customers and concerned parents in the state are left without even basic limitations on who can buy hemp and how it should be produced.

Michael Sims expressed this perfectly, “I have yet to meet someone in the industry who doesn’t want regulation. We welcome regulation. There needs to be an industry standard. We welcome reasonable regulation and reasonable taxes.”

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