Delta-8 THC is legal in Wisconsin, and so anybody in the state can buy and possess delta-8 THC products, provided they meet the definition of “hemp.”
While its legality is something of a gray area, there is no serious opposition to it in the state, aside from some calls for age restrictions on purchases. However, there are important rules surrounding driving under the influence and where you can smoke delta-8 that you should know.
Is Delta-8 THC Legal to Sell in Wisconsin?
Delta-8 THC is legal in Wisconsin, because state law uses the same definitions for “hemp” as the federal Farm Bill.
Wisconsin law defines hemp as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9-tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”
In short, this includes all cannabinoids in a cannabis plant, provided that the delta-9 THC level is less than 0.3% by dry weight. This includes delta-8 THC by definition, and so the cannabinoid is legal in the state.
While the state’s Controlled Substances Act does include tetrahydrocannabinols (and isomers), those contained in hemp are exempted from this law.
Delta-8 THC Legislation Timeline for Wisconsin
Delta-8 THC was illegal in Wisconsin until 2019, when the state’s hemp pilot program was turned into a permanent program and rules were expanded.
Wisconsin’s hemp pilot program was established in December 2017, when the state passed Act 100. This included some language that could be considered to have legalized delta-8 THC in some cases, in particular defining hemp as including “any part of the [Cannabis sativa] plant” provided the delta-9 THC is below 0.3%. However, the exemption to the state’s controlled substances act for hemp wasn’t created until 2019, when Senate Bill 188 was passed.
This bill established the permanent hemp program in the state, and added “including the
seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and
salts of isomers, whether growing or not,” to the definition of hemp. While the previous definition potentially legalized delta-8, this one makes it more clear by including “all cannabinoids” in the definition of hemp.
The Wisconsin Legislative Council also published an Issue Brief for the state Legislature in July 2021 regarding the legality of delta-8 THC. It argued the issue hinges on whether delta-8 THC is considered “synthetic,” and concluded that:
“Naturally occuring delta-8 THC extracted from hemp is likely not controlled by federal or state law. However, if the conversion of delta-8 THC from hemp-derived CBD renders the substance ‘synthetically’ derived or ‘chemically synthesized,’ then it constitutes a Schedule I substance under federal and state law. Until regulators or lawmakers provide further clarity, the legality of delta-8 THC appears to depend significantly on the nature and characterization of the process used for its production.”
Two years later, no laws have been passed to clarify this issue. It shows how the Legislative Council was thinking, but it doesn’t actually tell us whether the conversion process makes delta-8 THC a controlled substance, and the statement is ultimately non-binding. In short, it describes the issue from their perspective without really providing any clarity in itself.
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 is not permitted to be added to food under federal law, but Wisconsin doesn’t consider a food to be adulterated purely because of the presence of hemp or hemp products.
The federal Food, Drug and Cosmetic Act prevents delta-8 THC being used in food at the federal level, but Wisconsin law explicitly states that hemp (as defined in state law) does not render a food to be adulterated. There is a conflict here – since the state allows something the federal government does not – but this simply means that any delta-8 THC edible can be sold within the state but not between states. While this does happen, interstate sales could trigger FDA enforcement, while intrastate sales would not.
The FDA has already sent out one warning letter to a Wisconsin company which mentions this issue, specifically noting that the foods were introduced into “interstate commerce.” In short, any delta-8 THC containing food produced in Wisconsin should only be sold within Wisconsin.
Can You Buy Delta-8 in Wisconsin?
Delta-8 THC is available to purchase in Wisconsin, whether from stores within the state or online sellers operating across the country. With state law not prohibiting the sale of delta-8 and federal law generally being considered not to either, there is no limitation on purchasing delta-8 in Wisconsin.
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Delta-8 Alternatives You Can Legally Buy in Wisconsin
Since Wisconsin took on the definitions from the federal Farm Bill, delta-8 THC alternatives like delta-10 THC, HHC or even hemp delta-9 THC are legal in the state too. THC-O is not legal because it isn’t a natural component of the hemp plant.
Are There Age Restrictions on Delta-8 THC Products?
While Wisconsin’s delta-8 THC and hemp laws don’t establish a minimum age for purchases, many stores will only sell hemp and especially intoxicating hemp products to customers over the age of 21.
Can You Consume Delta-8 THC in Public in Wisconsin?
There are technically no limitations on where you can consume a delta-8 THC edible, tincture or other non-smoked product, but smoking is limited by the Wisconsin Clean Indoor Air Act.
Based purely on the law, you can’t smoke delta-8 THC anywhere smoking cigarettes is banned, including restaurants, indoor movie theaters, retail establishments and offices. However, since marijuana is not legal in the state, you’re less likely to run into issues if you confine your smoking to private places. While you couldn’t be arrested, you may be requested to prove that it isn’t marijuana if you’re caught by cops, or asked to stop by the owner of the establishment even in a designated smoking area.
Can You Drive Under the Influence of Delta-8 THC in Wisconsin?
Driving under the influence of delta-8 THC is illegal in Wisconsin.
Wisconsin law forbids driving under the influence of an intoxicant “to a degree which renders him or her incapable of safely driving.” This means that if you’re high on delta-8 THC, you cannot legally drive in the state. However, if you have less than 1 ng/ml of THC in your blood, it does not meet the definition of a restricted controlled substance, and so you can’t be punished unless you were clearly impaired.
In the first instance, you’ll be fined between $150 and $300, with greater punishments for subsequent offenses.
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Can You Travel to Wisconsin With Delta-8?
Traveling to Wisconsin with delta-8 THC is totally legal, provided the state you travel from also has legal delta-8. If you’re traveling by air, it’s wise to bring some proof that the product is hemp, such as a Certificate of Analysis (COA).
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Since delta-8 THC is legal in Wisconsin and at the federal level, traveling with delta-8 is totally fine. However, since neighboring Iowa (for example) doesn’t allow delta-8, it’s important to be sure it’s also legal in the state you travel from. You are allowed to bring hemp products (including delta-8) on flights, but it’s a good idea to bring documentation that it is hemp.
Closing Thoughts: The Future for Delta-8 in Wisconsin
There is no pending state-level legislation that affects delta-8’s legality in Wisconsin, but some local governments are taking steps to control it. For instance, in Wood County only adults aged 21 or over can purchase intoxicating hemp products, and the city of Marshfield is trying to do the same this year.
However, the broader picture in the state appears to be a move towards relaxing marijuana laws. Wisconsin doesn’t allow state-wide citizen-initiated ballot measures, but non-binding referenda in local areas such as Dane County show strong support for legalization. The state’s GOP appears to be softening on medical marijuana, too, with a possibility it will be legalized in 2023.
Overall, while more localities – and possibly even the state – may add age restrictions to delta-8, most of the upcoming legislative action in the state will likely be around marijuana itself.
