Is Delta-8 THC Legal? A State-by-State Analysis

Is delta-8 THC legal in your state? Did the 2018 Farm Bill legalize it federally? We’ve analyzed state laws and spoken to cannabis attorneys to find out.

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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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Expert reviewed byNeil Willner

Expert reviewed 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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Federally legal hemp-derived delta-8 THC plant
Photo: Shaunna Kaufmann / CBD Oracle
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Ever since some smart, CBD-rich company with a penchant for spotting loopholes in federal laws devised the first commercial delta-8 THC product, people have wondered: but is delta-8 THC actually legal?

The answer to this question very much depends on who you’re asking. The cannabis entrepreneur will tell you that delta-8 THC is an adult-use marijuana product trying to avoid oversight through some quasi-legal trickery, while the hemp store owner will swear with their last breath that every single molecule produced from a hemp plant can now be packaged and sold across the whole country with no threat of legal action.

If you’re just a consumer looking for an answer to this simple question, it can be hard to know who to listen to or whether you’ll get in trouble for that vape pen in your back pocket as you cross the border to South Carolina.

That’s why we’ve gathered information about the delta-8 THC laws in every state in the country, talking to lawyers and experts about both the federal and local-level pictures, to give you the most accurate and objective answer possible.


Is Delta-8 Federally Legal?

The plain language of the 2018 Farm Bill legalizes delta-8 THC, but the DEA seems to disagree.

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 on a dry weight basis.” 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. The court also argued (page 18) that it doesn’t matter how the “derivatives, extracts, [and] cannabinoids” are produced, provided the delta-9 THC remains under the threshold.

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, stated in an August 2021 letter to the Arkansas Department of Agriculture, “Arriving at delta-8-THC by a chemical reaction starting from CBD makes the delta-8-THC synthetic and therefore, not exempted by the [Farm Bill]. Any quantity of delta-8 THC obtained by chemical means is a controlled substance.”

At a conference in May 2023, he indicated that the DEA will clarify via rulemaking that any cannabinoid produced by chemical synthesis is a controlled substance. This proposed rule has not yet been released, and is not expected to be released until Fall 2023, according to the law firm Vicente.


Where Is Delta-8 THC Legal?

Here you can find the latest on whether delta-8 THC is available and legal in your state. We work around the clock to provide you with the latest developments on the statewide legality of delta-8 and its products.

Delta-8 THC is legal in 23 states with limited regulation

Note: states with a * have instituted age restrictions but still allow open sales to adults. States with a (?) are currently involved in a legal battle about delta-8’s status.

And a further three states with substantial regulations

Note: States marked with a ** only allow delta-8 THC sales in regulated marijuana dispensaries.

Which States Have Restricted or Banned Delta-8 THC?

Currently, 17 U.S. states and one district have banned delta-8 THC and a further 7 states have severely restricted it.

Banned

Restricted

Note: States with this status have generally limited the combined THC allowed in hemp products, so all THCs have to add up to less than 0.3% of the product by dry weight, and/or instituted a strict serving limit (serving limits are noted in brackets).

  • Iowa
  • Kansas
  • Louisiana (all THCs must be under 8 mg per serving and 1% by dry weight)
  • Michigan (all THCs under 0.3% and only marijuana-derived delta-8 allowed)
  • Minnesota (all THCs under 0.3% and less than 5 mg per serving)
  • New Hampshire
  • Virginia (2 mg serving limit or >25:1 CBD:THC ratio)

A State-By-State Guide

Alabama (AL)

Delta-8 is legal in Alabama following the passage of SB 225 in 2019, but can only be sold to adults aged 21 or over. SB 225 legalized hemp using the same wording as the 2018 Farm Bill, and this is generally considered to have legalized delta-8 THC along with any other cannabinoids contained in a hemp plant, provided there is less than 0.3% delta-9 THC.

Alabama lawmakers also passed SB 66 in 2023, after a failed attempt to outright ban delta-8 in 2021. This bill makes it illegal to sell delta-8 THC (and other intoxicating hemp cannabinoids) to anyone aged under 21.

Learn more: Delta-8 Laws in Alabama

Alaska (AK)

Despite having legalized cannabis, delta-8 THC is not legal in Alaska. Unlike in many states, Alaska’s hemp law (SB 27) doesn’t make an exemption to the controlled substances bill for the THCs in hemp, although it does exempt them from the definition of marijuana. This means that delta-8 THC products are still classed as Schedule IIIA controlled substances in the state, and can’t be sold legally. Newly passed regulations which take effect on November 3rd, 2023, go even further and explicitly forbid all hemp products containing THC (11 AAC 40.400(d)/page 17), specifically mentioning cannabinoids made from industrial hemp extracts (e.g. delta-8).

Learn more: Delta-8 Laws in Alaska

Arizona (AZ)

Delta-8 THC is legal in Arizona, but lawmakers are struggling to pass bills regulating the cannabinoid. In May 2018, the legislature passed SB 1089, which used the 2014 Farm Bill definition of hemp and created a pilot program. This bill also included a key provision, which states that if authorized under federal law, hemp manufacturing and commerce is allowed outside of this pilot program.

This means that delta-8 THC became legal in Arizona with the passage of the 2018 Farm Bill, which is widely considered to have legalized delta-8 THC and any other hemp cannabinoids. In turn, the controlled substances bill also references the federal-level list, which exempts hemp from all relevant definitions. In short, Arizona hitched its law to federal law, and so delta-8 THC is legal in the state.

Learn more: Delta-8 Laws in Arizona

Arkansas (AR)

Delta-8 in Arkansas is legal. The state passed Act 629 to prohibit delta-8 THC, delta-10 THC and other THCs, and to change the delta-9 THC limit to 0.3% of the CBD content. However, Bio Gen, LLC challenged the state in court, and the court prevented the enforcement of the act. This means Act 629 has been blocked (at least until the case is resolved) and delta-8 THC remains legal in the state under Act 565.

Learn more: Delta-8 Laws in Arkansas

California (CA)

Delta-8 is restricted in California under state law. Delta-8 THC products can be sold legally, but only if they’re derived from marijuana and sold in state-licensed dispensaries. The Department of Cannabis Control (DCC) was tasked with producing a report on including hemp-derived delta-8 in the adult-use market, but this has yet to be completed. This means you can’t buy hemp-derived delta-8, but you can purchase up to 28.5 grams of marijuana-derived delta-8 from a licensed dispensary.

Learn more: Delta-8 Laws in California

Colorado (CO)

Delta-8 THC is not legal in Colorado, despite marijuana itself being legally available in the state. Despite SB 19-220 legalizing hemp in line with the 2018 Farm Bill, in May 2021, the Colorado Department of Public Health and Environment issued a notice stating that chemically modifying naturally-occurring cannabinoids from hemp is incompatible with the definition of “industrial hemp product.” In essence, this means that the state considers any commercial delta-8 THC product to not be hemp.

This issue was clarified by SB 23-271, which re-affirmed the above and also established a 1.75 mg limit of any THC for “non-intoxicating” hemp products. Delta-8 THC could theoretically have been sold in the legal marijuana industry, but the Marijuana Enforcement Division also issued a notice stating that the process used to make delta-8 THC is not permitted for adult-use marijuana products either.

Learn more: Delta-8 Laws in Colorado

Connecticut (CT)

Delta-8 THC is legal in Connecticut but effectively all commercial products are classified and regulated as cannabis products. HB 6699 was signed into law in June 2023, and creates a category of “high THC hemp products,” which (using edibles as an example) contain more than 1 mg of total THC per serving (including delta-8, delta-9 and others) or more than 5 mg per container. Since delta-8 THC products tend to contain much more than this, Connecticut law requires them to be sold in state-licensed marijuana dispensaries, and comply with all regulations that exist for cannabis.

Learn more: Delta-8 Laws in Connecticut

Delaware (DE)

Hemp delta-8 THC is not legal in Delaware, despite the state legalizing marijuana in 2023. The reason for this comes down to Delaware’s unusual hemp law (SB 266), which uses the 2014 Farm Bill definition of hemp and doesn’t make exemptions to the state’s controlled substances laws. “Any tetrahydrocannabinols” are listed in Schedule I, so hemp-derived delta-8 THC is illegal in the state. However, after legalizing marijuana, any delta-8 THC derived from marijuana would be considered marijuana and would therefore be legal provided it stays within possession limits.

Learn more: Delta-8 Laws in Delaware

Florida (FL)

Hemp-derived delta-8 is legal in Florida under state law (SB 1020), meaning its use, possession, sale, distribution and production is permitted within its borders without risk of penalty or prosecution. SB 1676, passed in 2023, makes it illegal to sell hemp-derived delta-8 (and other hemp extracts) to anyone aged under 21. Note that delta-8 derived from marijuana is not legal in Florida.

Learn more: Delta-8 Laws in Florida

Georgia (GA)

The legality of delta-8 THC in Georgia is currently unclear as a result of ongoing legal action. The Georgia Hemp Farming Act (HB 213) used the same definitions as the 2018 federal Farm Bill, and this is generally considered to have legalized delta-8 THC. However, the Gwinnett County District Attorney argued in early 2022 that delta-8 THC was not exempted from the state’s controlled substances bill. The legal action surrounding this issue is ongoing.

Learn more: Delta-8 Laws in Georgia

Hawaii (HI)

Delta-8 THC is not legal in Hawaii. Specifically, although HB 1819 followed the definitions used in the 2018 Farm Bill and so likely legalized delta-8 THC derived from hemp, the Department of Health revised its hemp rules in 2022. From February 24th, 2022, delta-8 THC (along with delta-10, HHC and others) have been banned in the state, because of the “isomerization” process used to create them. However, journalists and Reddit users have confirmed it was still sold (illegally) as of April 2023.

Learn more: Delta-8 Laws in Hawaii

Idaho (ID)

Idaho is renowned for having the toughest hemp laws in the country. No hemp-derived product can carry any percentage of THC or its isomers, as outlined under HB 126 and in the Idaho Uniform Controlled Substances Act. Despite HB 126 defining “hemp” in line with the 2018 Farm Bill, hemp was not excluded from the state’s controlled substances bill in the same way as in federal law. In fact, any THC present creates a presumption that the substance is “marijuana,” not “hemp,” so delta-8 THC is illegal in the state. Likewise, marijuana and marijuana-derived delta-8 are strictly forbidden. 

Learn more: Delta-8 Laws in Idaho

Illinois (IL)

Hemp-derived delta-8 is legal in Illinois, as outlined in its Industrial Hemp Act, but it must only be sold as hemp and not in state-licensed marijuana dispensaries. Despite some confusion surrounding a Department of Agriculture policy document released in March 2022, the policy only bans adult use and medical cannabis licensees from converting hemp CBD to delta-8 THC. This does not apply to hemp licensees, so delta-8 THC derived from compliant hemp can be sold legally as hemp.

Learn more: Delta-8 Laws in Illinois

Indiana (IN)

The legal status of delta-8 THC in Indiana is unclear, pending the result of ongoing legal action. While SB 516 defined hemp in line with the 2018 Farm Bill and exempted hemp from the state’s definition of marijuana, it didn’t exempt it from the definition of THCs. This led state Attorney General Todd Rokita to issue an opinion in January 2023 stating that delta-8 THC is illegal in the state. For this, the state has been sued by 3Chi and the Midwest Hemp Council, but the case is ongoing.  

Learn more: Delta-8 Laws in Indiana

Iowa (IA)

The vast majority of commercial delta-8 THC products are not legal in Iowa, but it’s technically not outright banned. The Iowa Hemp Act defines hemp in the same way as federal law, but states that hemp products can only contain a “tetrahydrocannabinol [THC] concentration” of 0.3% on a dry weight basis. This doesn’t specify delta-9 THC, so this means that the combined amount of all THCs must remain under this limit, and so most delta-8 THC products would be illegal.

Additionally, the law also makes it illegal to sell any hemp products for inhalation.

Learn more: Delta-8 Laws in Iowa

Kansas (KS)

Most commercial delta-8 THC products are illegal in Kansas, although it’s technically possible to sell it legally and it is reportedly sold illegally across the state. HB 2167 used the 2014 Farm Bill’s (less detailed) definition of “hemp” in establishing the Kansas hemp program, but the 0.3% THC limit applies to delta-9 THC and its optical isomers. This means that the only delta-8 THC products that can legally be sold in the state are ones with combined THC of less than 0.3%, and almost no commercial products meet this standard.

However, many stores still stock and sell delta-8 THC products as of August 2023.

Learn more: Delta-8 Laws in Kansas

Kentucky (KY)

Delta-8 THC remains legal in Kentucky following a legal dispute in 2021 and 2022. HB 197 legalized hemp in line with the 2018 Farm Bill, but in April 2021, the state Department of Agriculture published a letter stating that while delta-9 THC (at less than 0.3%) was exempted from the state’s controlled substances bill, delta-8 THC was not. The Kentucky Hemp Association filed a lawsuit, essentially arguing that the exemption was not “narrow” in the way the Department of Agriculture suggested. The court sided with the Hemp Association.

Governor Andy Beshear issued an executive order in November 2022 explicitly stating that delta-8 THC is legal. In August 2023, rules were established prohibiting sales of delta-8 THC (and other THCs) to anyone aged under 21.

Learn more: Delta-8 Laws in Kentucky

Louisiana (LA)

Delta-8 is legal in Louisiana, provided it is only sold to adults aged 21 or over and contains less than 8 mg of combined THC per serving. Louisiana’s hemp law was written in line with the 2018 Farm Bill through HB 491 in 2019, and clarified substantially through 2022’s HB 758. The latter bill created a category of “adult use consumable hemp products,” which can’t be sold to anybody aged under 21 and can contain a maximum of 8 mg of THCs per serving. Essentially all commercial delta-8 THC products fall into this category.

Learn more: Delta-8 Laws in Louisiana

Maine (ME)

Delta-8 THC is legal in Maine. State law defines hemp in the same way as the 2018 Farm Bill, and explicitly includes products derived from hemp, including food products. This means that delta-8 THC is legal in the state when derived from hemp, and adult use cannabis is also legal in the state, so marijuana-derived delta-8 THC is allowed too.

Learn more: Delta-8 Laws in Maine

Maryland (MD)

Delta-8 THC is legal in Maryland following the Maryland Hemp Coalition winning a temporary injunction against the state. This ruling prevents the state from enforcing HB 556, which limited hemp products to 0.5 mg of THC (any THC) per serving and 2.5 mg per package, effectively confining delta-8 THC to the marijuana industry. However, the court has temporarily prevented this provision from being enforced, because it creates a monopoly for the marijuana industry. The case has yet to be concluded. 

In the meantime, delta-8 THC products are legal through HB 1123, which follows the definitions of the 2018 Farm Bill, but SB 788 enforces a minimum age of 21 on delta-8 or delta-10 THC.

Learn more: Delta-8 Laws in Maryland

Massachusetts (MA)

Hemp-derived delta-8 THC is not legal in Massachusetts. While state law defines hemp in line with the 2018 Farm Bill, it also gives rulemaking authority to the Department of Agricultural Resources and allows them to decide allowable uses of hemp. In turn, the department released a set of rules and a policy statement on the (limited) products available in the state, and specifically commented that hemp delta-8 THC is not permitted.

As a result, hemp-derived delta-8 THC cannot be sold in Massachusetts. However, marijuana is legal in the state, and marijuana-derived delta-8 THC may be sold as part of the regulated marijuana program.

Learn more: Delta-8 Laws in Massachusetts

Michigan (MI)

Michigan regulates delta-8 THC as part of its marijuana program and only allows marijuana-derived delta-8 to be sold. In 2019, the state passed HB 4744, which essentially wrote the 2018 Farm Bill into state law, but clarified this law in 2021 with HB 4517. Under HB 4517, the total amount of all THCs (including THCa, delta-8 and others) in hemp has to be below 0.3% by dry weight.

The result of this is that delta-8 THC products can only be sold in dispensaries licensed by the Cannabis Regulatory Agency (CRA), to adults aged 21 or over. While the CRA proposed a plan to allow hemp-derived delta-8 THC in the marijuana industry, it was eventually axed because of safety concerns. This means that only marijuana-derived delta-8 THC can be sold in the state.

Learn more: Delta-8 Laws in Michigan

Minnesota (MN)

Delta-8 THC is legal but regulated in Minnesota, and will become part of the state’s regulated marijuana industry from March 2025. Minnesota state law defines “hemp” in the same way as the 2018 Farm Bill, but further restrictions were passed in 2022 (HF 4065) and the state’s adult-use marijuana legislation (HF 100) which passed in 2023. Currently, delta-8 THC products can be sold to adults (21+) in edible cannabinoid products, provided they have less than 0.3% of any THC, less than 5 mg of THC per serving and less than 50 mg per container.

These rules expire in March 2025, when delta-8 THC will only be available from state-licensed dispensaries.

Learn more: Delta-8 Laws in Minnesota

Mississippi (MS)

Delta-8 THC is technically not legal in Mississippi, but it is still sold anyway. State lawmakers passed SB 2725 in 2020. This bill defined hemp in the same way as the 2018 Farm Bill, and removed “hemp” from the definitions of marijuana and THC in the state’s controlled substances list (sections § 41-29-113(d)(23) and (31)(v)). However, when it comes to products designed for human consumption (and not hemp plant material) the legislation only made an exemption for products that are approved by the FDA from the state’s controlled substances list (section § 41-29-113(d)(31)(vi). Additionally, the bill didn’t fund the program, so the only way to cultivate hemp in the state is by getting approval from the USDA.

Since no delta-8 THC products are (or likely would be) approved by the FDA, this means that no products are exempt from the limitations of the controlled substances bill. There are complications, though, with police officers in the state claiming that because vape pens often contain less than one “dosage unit”, they cannot charge people with a crime. 

However, even edible delta-8 THC products are still available for sale in the state.

Learn more: Delta-8 Laws in Mississippi

Missouri (MO)

Delta-8 THC is legal in Missouri following the passage of HB 2034 in 2018. This bill defines hemp in a slightly different way to the 2018 Farm Bill (which was passed later that year), but has still led to an explosion of delta-8 THC products in hemp stores. This isn’t regulated as part of the adult use or medical cannabis programs, but it’s possible that marijuana-derived delta-8 THC will be sold in dispensaries in the state in the future.

However, as in Mississippi, there is no funding for the state hemp program as of 2023, so producers must apply for licensing through the USDA.

Learn more: Delta-8 Laws in Missouri

Montana (MT)

Delta-8 THC is not legal in Montana. The state passed HB 948 in 2023, and this bill defines synthetic cannabinoids to include any cannabinoids produced artificially, and bans them from sale. Not only does the bill modify the definition of hemp so that it doesn’t include synthetic cannabinoids, it also bans anybody (including licensed marijuana dispensaries) from selling a synthetic cannabinoid.

Since all delta-8 THC products are manufactured in this way, delta-8 is not legal in the state.

Learn more: Delta-8 Laws in Montana

Nebraska (NE)

Delta-8 is legal in Nebraska. The state passed LB 657 in 2019, which legalized hemp in line with the 2018 Farm Bill, and took the necessary step of removing hemp from the relevant parts of the state’s controlled substances bill. This means that delta-8 THC is legal in Nebraska provided it is part of hemp or a hemp product with less than 0.3% delta-9 THC. There are reports that some police departments are using an older law to cite people for using delta-8 THC, but this is not common and other officers completely disagree.

Learn more: Delta-8 Laws in Nebraska

Nevada (NV)

Delta-8 THC is not legal in Nevada. Despite starting the state hemp industry in line with the 2018 Farm Bill, SB 49 passed in 2021 and changed things. The bill changed the 0.3% THC limit so it applies to all THCs (including delta-8), and defined synthetic cannabinoids to include anything produced artificially, which makes virtually all commercial delta-8 THC products illegal in the state. It’s possible that the Cannabis Compliance Board could approve a product containing delta-8 THC, but no such product has been approved so far and there is no sign that this will change.

Learn more: Delta-8 Laws in Nevada

New Hampshire (NH)

Delta-8 THC products can’t be legally sold in New Hampshire as of October 7th, 2023 following the passage of HB 611 in August. HB 459 established the New Hampshire hemp industry in 2019, using the 2014 Farm Bill definition of hemp, and delta-8 THC was assumed to be legal in the state. However, HB 611 adds a line stating that nothing in state hemp law allows the sale of products containing any THC at over 0.3% by dry weight. This covers essentially all commercial delta-8 THC products.

Learn more: Delta-8 Laws in New Hampshire

New Jersey (NJ)

Delta-8 THC is legal in New Jersey following the passage of the New Jersey Hemp Farming Act in 2019. This replaced the pilot program that was established the previous year and removed hemp from the relevant parts of the state’s controlled substances list. This legalized delta-8 THC in the state, but didn’t do much else, with the state not even having a minimum age for purchase written in law. In May 2023, lawmakers proposed A5440, which would ban delta-8 in the state if it is signed into law.

Learn more: Delta-8 Laws in New Jersey

New Mexico (NM)

Delta-8 THC is legal in New Mexico. In 2019, the state passed HB 581 (aka the Hemp Manufacturing Act), which defined hemp in line with the 2018 Farm Bill, removing hemp and its THCs from the controlled substances list in the state and allowing its sale. As happened around the country as a result of similar laws, this had the effect of legalizing delta-8 THC in the state, provided that the product contains less than 0.3% delta-9 THC by dry weight.  

Learn more: Delta-8 Laws in New Mexico

New York (NY)

Delta-8 can’t be legally sold as hemp in New York. The state’s Cannabinoid Hemp Regulations prohibit any hemp products which include cannabinoids created through isomerization, which is one name for the process used to produce delta-8 THC from CBD. This means that effectively every delta-8 product on the market is banned from being sold as hemp in the state. Any delta-8 THC products would have to be derived from marijuana sold through the adult use or medical marijuana market to be sold legally. However, there are reports that delta-8 THC products are sold illegally in New York.  

Learn more: Delta-8 Laws in New York

North Carolina (NC)

Delta-8 is legal in North Carolina, following the passage of SB 455 in 2022. North Carolina’s bill came long after the Farm Bill because of a dispute over rules around smokeable hemp, which put the brakes on attempts in both 2019 and 2020. SB 455 finally passed in 2022, using the 2018 Farm Bill definition of hemp and without a ban on smokeable hemp. There is currently no age limit to purchase hemp, though, which legislators are attempting to address through HB 563.

Learn more: Delta-8 Laws in North Carolina

North Dakota (ND)

Delta-8 is illegal in North Dakota following the passage of SB 2096. In 2021, HB 1045 made it illegal to use chemical isomerization to convert CBD into other cannabinoids, which covers effectively all commercial delta-8 THC products. SB 2096 made it more explicit: if a product contains delta-8 THC, HHC, THCP or other “chemically derived cannabinoids” it is not hemp in North Dakota law. Simply put, delta-8 THC is a controlled substance in North Dakota.  

Learn more: Delta-8 Laws in North Dakota

Ohio (OH)

Hemp-derived delta-8 is legal in Ohio following the passage of SB 57, which legalized hemp in the state and removed it from the relevant portions of the controlled substances list. The bill makes it legal to buy and even sell hemp products without a license, but these are needed to grow or process hemp into a product. Additionally, medical marijuana producers have to include delta-8, delta-10 and other THCs in their dosage calculations and show the quantities of each on product packaging.

Learn more: Delta-8 Laws in Ohio

Oklahoma (OK)

Delta-8 THC is legal in Oklahoma. The state established a hemp pilot program in 2018 with HB 2913, and made it a permanent program a year later through SB 868. The result of these bills is that Oklahoma law defines hemp in the same way as the 2018 Farm Bill, and SB 868 also exempts it from the definitions of marijuana and THC in the state’s controlled substances list. With no further legislation passed on the topic, delta-8 THC remains legal in Oklahoma.

Learn more: Delta-8 Laws in Oklahoma

Oregon (OR)

Delta-8 THC is not legal in Oregon. Although the state’s original hemp law defined “industrial hemp” in a way that was considered to have included delta-8 THC, further rules make it clear that delta-8 THC cannot be sold as hemp nor as an adult use marijuana product. In both cases, the law forbids selling products containing “artificially derived cannabinoids,” which are defined in a way which includes delta-8 THC as found in commercial products.

Learn more: Delta-8 Laws in Oregon

Pennsylvania (PA)

The legal status of delta-8 THC in Pennsylvania is not clear, owing to difficulty interpreting HB 967, the state’s hemp law. This was passed in 2016, and defines hemp in line with the 2014 Farm Bill, which doesn’t explicitly mention that all hemp cannabinoids are legal. The bigger issue is that it didn’t exclude hemp from the state’s controlled substances bill, so many people – including District Attorneys and County Drug Task Forces – believe it is illegal. However, it is still sold in the state despite the threat of police action.

In a recently filed litigation, a vape shop in Lancaster Pennsylvania commenced a lawsuit against the District Attorney stemming from the DA’s ”warrantless raid and seizure” of delta-8 THC products. In addition to monetary damages, the vape shop is asking a federal court to declare that all hemp-derived products, including delta-8 THC products, that contain less than 0.3% delta-9 THC are not subject to enforcement under PA’s Controlled Substances Act.

Learn more: Delta-8 Laws in Pennsylvania

Rhode Island (RI)

Hemp-derived delta-8 THC is not legal in Rhode Island. While the state established a hemp program through the Hemp Growth Act, which passed in 2016, the state didn’t exempt hemp components from the controlled substances list in the same way as many other states. While the definition for marijuana exempts hemp, THC includes no exemption and lists delta-8 THC specifically. Rhode Island has legalized marijuana, so it’s possible that delta-8 THC products derived from marijuana are legal, although they are not allowed in the medical marijuana program.

Learn more: Delta-8 Laws in Rhode Island

South Carolina (SC)

South Carolina’s hemp law, H3449, legalized hemp in line with the 2018 Farm Bill, but there is substantial dispute around delta-8 THC. Attorney General Alan Wilson claimed in an opinion – written to Police Chief Mark Keel – that it doesn’t make an exception to the controlled substances list for hemp. This resulted in raids on stores in the state which believed they were operating legally.

The situation is complicated, though, because “hemp” was exempted, and its definition appears to include delta-8 THC based on the most common interpretations. The industry argues that “all cannabinoids” in hemp are exempted, but Wilson argues that the exemption must be specific for each cannabinoid, and this wasn’t done for delta-8. This will have to be resolved either in court or with further lawmaking.

Learn more: Delta-8 Laws in South Carolina

South Dakota (SD)

Delta-8 THC is legal in South Dakota, but a 2022 bill limits sales to adults aged 21 or over. South Dakota’s hemp law was largely established through HB 1008, which followed the blueprint laid down by the 2018 Farm Bill and legalized delta-8 THC. In 2022, the state passed HB 1292, a one-page bill simply making it illegal to give or sell intoxicating hemp products to anyone under 21, and to make possession illegal for minors.

Learn more: Delta-8 Laws in South Dakota

Tennessee (TN)

Delta-8 is legal in Tennessee, but can only legally be sold to adults aged 21 or over. Tennessee’s hemp program was established by SB 357, which defined hemp in line with the 2018 Farm Bill and exempted hemp from the relevant parts of the state’s controlled substances list. In 2023, SB 378 took things further, by classifying delta-8 THC, delta-10, HHC and other intoxicating cannabinoids as “hemp derived cannabinoids” and establishing regulations for lab testing and packaging, as well as a minimum age of 21.

Tennessee’s bill makes it one of the least ambiguous states when it comes to delta-8 THC: it is explicitly legal in the state but it is also regulated and taxed.

Learn more: Delta-8 Laws in Tennessee

Texas (TX)

Delta-8 is temporarily legal in Texas following a long and arduous battle between state lawmakers and delta-8 vendors. HB 1325 legalized hemp based on the 2018 Farm Bill definition, but the Department of State Health Services claimed that delta-8 THC was illegal in late 2021. Hometown Hero sued them, and won a temporary injunction against the ban.

The injunction is only “temporary” but this really means “until the legal action is resolved.” There was a hearing on September 5th, 2023, but the action is still not resolved and so delta-8 THC remains legal.  

Learn more: Delta-8 Laws in Texas

Utah (UT)

Hemp-derived delta-8 THC is not legal in Utah, unless you get it through the state’s medical marijuana program. HB 227 passed in 2023, and creates a category of “artificially derived cannabinoids,” which is defined in a way that covers all delta-8 THC products. Artificially derived cannabinoids are classified as adulterants in the law, which means it’s illegal to sell any products containing them. Proposed rules would allow artificially derived cannabinoids like delta-8 THC in the medical marijuana program provided they are at least 95% pure.

Learn more: Delta-8 Laws in Utah

Vermont (VT)

Delta-8 THC is not legal in Vermont, either in the regulated marijuana industry or as hemp. For hemp-derived delta-8 THC, the Vermont Hemp Rules explicitly ban the use of any “synthetic cannabinoids” in the production of any hemp product. For marijuana, an emergency rule adopted in 2023 bans the use of any artificially-produced THC in adult-use products in the state.

Learn more: Delta-8 Laws in Vermont

Virginia (VA)

Delta-8 THC is not legal to sell in Virginia, unless the product meets very specific dosage requirements. While HB 1839 legalized hemp in 2019, using the usual Farm Bill definitions, future legislative actions have all-but-banned delta-8 THC in the state. The 2023 bill SB 903 stipulates that any hemp product must have no more than 2 mg of any THC per package, unless there is 25 times more CBD than THC.

This means that basically all commercial delta-8 THC products cannot be legally sold in the state (but some appear to still be sold illegally). While the state has legalized cannabis and marijuana-derived delta-8 THC is technically legal, legal recreational sales are not expected any time soon.

On September 1, 2023 hemp companies sued the Commonwealth in federal court, asking the court to enjoin enforcement of the newly passed legislation. The hemp companies argue that the 2018 Farm Bill preempts Virginia’s new “total THC” standard. As of the date of this article, the court has not yet issued a decision.

Learn more: Delta-8 Laws in Virginia

Washington (WA)

Delta-8 THC is not legal in Washington. While the state legalized hemp in line with the 2018 Farm Bill with SB 5276, a combination of new laws and regulations mean that it can’t be sold legally in the state, either through the regulated cannabis industry or as hemp. First, a policy statement from the state Liquor and Cannabis Board made it illegal to sell cannabinoids produced by isomerization in state-licensed dispensaries, meaning that sale as “hemp” was the only option for delta-8 THC.

However, 2023’s SB 5367 made a big change to the way products are classified, making it so that any product intended for human consumption with any detectable THC is a cannabis product. Combined with the policy that means delta-8 THC can’t be sold in licensed cannabis stores, this means delta-8 THC is completely banned in the state.

Learn more: Delta-8 Laws in Washington

Washington D.C.

Delta-8 THC is not legal in Washington D.C., but local stores sell it anyway. Washington D.C. never actually passed a hemp law and has no definition of “hemp” in its district statutes. Additionally, the district’s controlled substances list includes it by name, and even though marijuana is legal in D.C., it’s unclear whether delta-8 THC would be considered “marijuana” or “hashish” under the district’s definitions, or possibly neither.

Overall, then, since it is a listed controlled substance with no clear exemption, delta-8 THC is illegal in Washington D.C.. However, as with the “gray market” for marijuana in the district, delta-8 is still sold and law enforcement seems to do very little – if anything – about it. 

Learn more: Delta-8 Laws in Washington D.C.

West Virginia (WV)

Delta-8 THC is not legal in West Virginia. While the state’s definition of hemp as part of the Industrial Hemp Development Act matches the 2018 Farm Bill definition, the legislature passed SB 220 in 2023, which sets up rules for hemp-derived cannabinoids. The bill permits the sale of naturally-occurring, non-synthetic and non-“contaminated” cannabinoids – within the usual 0.3% delta-9 limit – but explicitly defines “contaminated” in a way that includes all commercial delta-8 THC products. This means (unless it was produced naturally, which is frankly unrealistic) that essentially all delta-8 THC products are banned in the state.

Learn more: Delta-8 Laws in West Virginia

Wisconsin (WI)

Delta-8 is legal in Wisconsin. The state defines hemp in the same way as the 2018 Farm Bill, and makes the necessary exemptions to the controlled substances list for the THCs in hemp. Despite this, the Wisconsin Legislative Council argued in an Issue Brief that the chemical conversions used to turn CBD into delta-8 THC make it illegal in both state and federal law. However, this statement isn’t binding and until further clarification is written in law, delta-8 should be considered legal in the state.

Learn more: Delta-8 Laws in Wisconsin

Wyoming (WY)

Delta-8 THC is legal in Wyoming, with a minimum age of 18 for edibles and vaping products. The state legalized hemp with HB 171, which uses the same definition of hemp as the 2018 Farm Bill, and exempts hemp products from the state’s controlled substances schedules. In early 2023, legislators passed HB 108, a short bill that establishes a minimum age of purchase of 18 for edible THC and vaping products.

Additionally, there is a draft bill being considered (as of September 2023) that would add delta-8 THC to Schedule I, although it already includes delta-6 THC (a name for delta-8 under an old numbering system). The bill clearly needs work, but this is one to keep an eye on.  

Learn more: Delta-8 Laws in Wyoming


Delta-8 THC: A Timeline

Delta-8 THC edibles sold legally nationwide
Photo: CBD Oracle

While delta-8 THC was first synthesized way back in 1941, it didn’t really gain much significance until after the 2018 Farm Bill passed. This took the discovery from a minor component of the cannabis plant that can also be produced from CBD fairly easily to something that every state in the country is grappling with. So starting with the Farm Bill, here is a timeline of key events. 

December 20, 2018: President Trump signs the Farm Bill into law. This is widely interpreted to have removed cannabinoids in hemp from the controlled substances list, provided the plant and extract meet the threshold of having less than 0.3% delta-9 THC by dry weight.

2019: A boom in hemp production following the Farm Bill’s passage led to an oversupply of CBD across the country, pushing prices down and leaving many farmers with unsold crop.

September 2019: 3Chi reportedly becomes the first company to sell delta-8 THC products – vape cartridges, gummies, tinctures and concentrates.

Early 2020: Hemp producers with unsold products and crops begin to sell it to delta-8 THC processors, leading to a drastic increase in products and a sharp rise in online searches for delta-8 THC.

May 21st, 2020: Vermont becomes the first state to actively ban the sale of delta-8 THC through its Hemp Rules. This made it illegal to use “synthetic cannabinoids” in any hemp product, and the process used to make delta-8 THC is covered by this definition. It’s worth noting that while this was the first ban, some states arguably never made delta-8 THC legal in the first place.

August 21st, 2020: The DEA releases an interim final rule with a widely misinterpreted phrase about “synthetically derived tetrahydrocannabinols” remaining Schedule I Controlled substances. In fact, all this rule did was bring the DEA’s regulations in line with the 2018 Farm Bill.

April 2021: Washington’s Liquor and Cannabis Board bans products containing synthetically derived THC from the state’s cannabis industry, and North Dakota prohibits hemp products created using isomerization. Kentucky’s Department of Agriculture published a letter claiming that delta-8 THC is a controlled substance in the state.

May 2021: New York releases hemp regulations and Colorado issues a notice, both stating that hemp licensees cannot chemically modify a hemp component to produce delta-8 THC in their programs.

June 2021: When asked about delta-8 THC, the DEA’s Chief of Intergovernmental Affairs Sean Mitchell said that the only thing in hemp that’s controlled is delta-9 THC at more than 0.3%.

August 2021: DEA Chief Terrence Boos said in a letter to the Arkansas Department of Agriculture that delta-8 THC as currently made is “synthetic,” and therefore an illegal controlled substance.

September 2021: The CDC and FDA release warnings about delta-8 THC, pointing out a rise in adverse event reports relating to the cannabinoid.

September 15th, 2021: DEA Chief Terrence Boos writes a letter to the Alabama Board of Pharmacy, stating that delta-8 THC meets the definition of hemp provided it has a delta-9 THC concentration of less than 0.3%. This would imply it isn’t a controlled substance.

October 4th, 2021: South Carolina Attorney General Alan Wilson writes a letter to Police Chief Mark Keel stating that delta-8 THC is illegal under state law. This later led to raids on stores by police acting on the basis of this opinion.

October 2021: The Texas Department of State Health Services updates its website to state that delta-8 THC is a controlled substance in the state. Many retailers pull delta-8 THC products off the shelves to avoid action by law enforcement. Hometown Hero and other companies sue the state.

November 2021: A judge grants a temporary restraining order against the Texas Department of State Health Services, allowing delta-8 THC to remain on shelves in the state. The legal action is still ongoing.

January 26th, 2022: Gwinnett County, GA’s District Attorney issued a warning about companies “illegally” selling delta-8 THC products, claiming that it is a controlled substance. Products were seized in a raid, and Elements Distribution sued the county. After a Gwinnett trial court rejected a request to return the property seized, the case was taken to the state Court of Appeals in 2023.

May 4th, 2022: The FDA sends warning letters to companies selling delta-8 THC products for making medical claims and for being an unsafe food additive when sold in edible form. They also warn about an increase in reports to poison control centers.

May 19th, 2022: A Ninth Circuit Court rules that delta-8 THC products are likely legal under the 2018 Farm Bill. This ultimately came from a dispute around trademarks.

November 15th, 2022: Following the Kentucky Hemp Association’s successful challenge to the Department of Agriculture’s claim that delta-8 THC is an illegal synthetic drug in the state, Governor Andy Beshear issues an executive order declaring that delta-8 THC is not a controlled substance in federal or Kentucky law.

January 12th, 2023: Indiana Attorney General Todd Rokita issues an opinion stating that delta-8 THC is a controlled substance in Indiana. 3Chi and the Midwest Hemp Council file a suit challenging this in June 2023. The case is ongoing.

May 2023: DEA Chief Terrence Boos gives a presentation at the DEA Supply Chain Conference which essentially argues that taking a “synthetic step” by processing CBD into delta-8 THC makes it a controlled substance, and says that rulemaking on this issue is coming.

September 7th, 2023: A federal judge in Arkansas blocks Act 629 from taking effect. This would have banned the sale of delta-8 THC in the state. The judge argues that delta-8 THC was legalized by the Farm Bill and the new state law attempted to change the definition of hemp in a way preempted by federal law.


Is Delta-8 THC Legal at the Federal Level? Three Perspectives

Even after all of this, you probably feel a little unsure about the answer to the question this whole post is about. And in a way that’s good: there isn’t a simple binary answer to the question because it really covers many smaller issues, and there is nuance that makes it difficult to give a straight yes-no answer. On top of this, all of those smaller issues depend on a kind of “most sensible reading” approach to a law which frankly had too little thought given to it before it was passed and signed. Everyone is confused. 

The crux of the issue is whether or not delta-8 THC is a controlled substance. Did the 2018 Farm Bill really remove basically anything present in hemp from the controlled substances list provided the delta-9 THC is under the 0.3% threshold? Even if you take something from the hemp, heat it and add a catalyst to produce something that is also present in natural hemp but only in tiny amounts? 

Nathan A. Lennon, Co-Chair of Reminger’s Cannabis and Hemp Law practice group, told us:

A growing body of opinions and law suggest that the federal government’s current position is that Delta-8 derived from hemp is not a controlled substance. A May 19, 2022 federal appeals court decision from California, AK Futures LLC v. Boyd St. Distro, LLC, concluded that hemp-derived delta-8 was in fact legal under the plain language of the Farm Bill.

Nathan A. Lennon, Co-Chair of Cannabis and Hemp Law Practice Group at Reminger

Another ruling from Arkansas also came to this same conclusion, and it is a pretty simple one to understand. “Derivatives” and “extracts” basically mean “things you can produce from it” and “things you take and refine from it,” and turning one cannabinoid into another intrinsically seems like it would be included in this – you extract CBD and derive delta-8. The “plain language” point comes up often and this is why: if you read the bill as a layman, this is what it seems like it means. 

Cannabis and hemp attorney Rod Kight also points to the AK Futures case and the plain language of the Farm Bill in his response to CBD Oracle: 

Yes, delta-8 THC from hemp is not a controlled substance under federal law based on the hemp exemption, which removes hemp and all of its derivatives, extracts, cannabinoids, isomers, etc. with a delta-9 THC concentration not exceeding 0.3% by dry weight from the Controlled Substances Act. This has been confirmed by the Ninth Circuit Court of Appeals in the AK Futures case and also by the DEA in several public announcements. Regardless of one’s views on whether or not D8 should be legal, its current lawful status is no longer the subject of serious dispute.

Rod Kight, Attorney, Kight on Cannabis

However, Shawn Hauser, Co-Chair of the Hemp and Cannabinoids Department at Vicente makes an important point about the DEA’s view, which comes through in recent statements from Terrence Boos: 

Whether or not Delta 8 is considered legal hemp (and not a controlled substance), is debated. The DEA very clearly takes the position that most Delta 8 on the market is not, because the way it’s produced, in DEA’s view, renders it a synthetic substance and therefore not within the definition of legal hemp under the 2018 Farm Bill. However, the 9th circuit and others take the position that Delta-8 THC products are legal hemp derivatives under the 2018 Farm Bill.

Shawn Hauser, Co-Chair of the Hemp and Cannabinoids Department at Vicente

She continues, “While there is some debate and challenge to the DEA’s conclusions regarding Delta 8 THC and the 2018 Farm Bill, the agency will nevertheless retain the ability to enforce its position under the Controlled Substances and Federal Analogue Act – despite the 9th Circuit ruling in AK Futures Ltd. Liab. Co. v. Boyd St. Distro, Ltd. Liab. Co., 35 F.4th 682 (9th Cir. 2022).” 

This last point in particular is crucial to keep in mind. When we say “is it legal?” part of what we’re asking – and arguably the most important part – is “will we get in trouble if we have this or sell it?” and not so much about the letter of the law. If the DEA view it as illegal, then you could still run into issues at least until you can get a date in court about it. 

Shawn Hauser also points out to us that the Federal Food, Drug and Cosmetic Act (FDCA) actually makes every delta-8 THC product illegal federally, “to be legally sold in interstate commerce, a product must be legal under the Federal Food, Drug, & Cosmetic Act. No Delta-8 product on the market is compliant with the FDCA.” Adding, “Regardless of its debated status as a controlled substance, Delta 8’s illegality under the Federal Food, Drug, and Cosmetic Act makes it federally illegal.” 

All in all, there is a lot to unpack, but a few key points are clear:

The Plain Language of the Farm Bill Includes Delta-8 THC as “Hemp.” While it may not be the case that the “plain language” is good enough to settle this issue, it’s hard to argue that the plain language of the Farm Bill doesn’t include delta-8 THC. Wikipedia’s definition is as good as any here: “a derivative is a compound that is derived from a similar compound by a chemical reaction.” This is what any reasonable person would understand “derivative” to mean in this context and every single aspect of this definition matches the conversion of CBD (a cannabinoid) to delta-8 THC (a cannabinoid) through the application of heat and an acid catalyst.

The DEA No Longer Agrees With This Assessment. The DEA has made seemingly contradictory statements on this issue over time, but now it appears they don’t believe delta-8 THC is legal. Terrence Boos’ talk at the DEA’s supply chain conference shows this line of thinking pretty clearly: taking a hemp component and doing any “synthetic” stuff with it makes it synthetic THC and therefore illegal. At the very least, they will clarify this issue in an upcoming rule.

If the DEA, the DA or the Cops Don’t Agree, There Is a Risk: For the “will I get in trouble?” question, the answer in some cases is “maybe, yeah.” At the state level, some District Attorneys have written opinions that delta-8 is illegal, and then shortly afterwards cops start seizing products from stores. People have their lives turned upside down and the only way to argue that what happened to you is not just is to go through the lengthy and expensive process of filing a lawsuit against the state. At whatever level, if they decide to enforce what they believe the law to be, it’s going to be hard.

Courts Tend to Say That Delta-8 THC Is Legal Hemp. Although the cases may have limited applicability and the Ninth Circuit Court, for example, doesn’t decide the law for the whole country (just like the DEA doesn’t either), it must be said that courts so far have supported the “industry” perspective. Both the Ninth Circuit and the recent Arkansas decision have sided with the plain language of the Farm Bill as written. Other courts would certainly disagree, but so far the drum the courts have been beating is simple: if they meant something else they should have put it in the law. Quoting from the Boone Circuit Court ruling about Kentucky’s law:

it is not the province of this Court to establish policy, or to make, change or repeal law. That is solely the role of the legislative branch. Courts adjudicate based upon the law. Thus, if only natural hemp (unadulterated by any chemical) is worthy of exemption, then Congress, and the General Assembly, could have made their statutes say so. They did not. Likewise, if the extraction or production of derivatives using non-hemp solvents should have remained a controlled substance, then the legislators could have, by statute, said so. They did not. Nor did the legislative body choose to limit Delta-8 concentrations as it did with Delta-9. Again, they could have but did not. Courts ‘cannot question the wisdom or policy of the general assembly’ but, rather, ‘must follow the plain provisions of its enactment . . . .’

Delta-8 THC Products Aren’t Legal Under the FDCA: The FDCA sets the federal laws for products introduced into interstate commerce, and as Shawn Hauser pointed out, delta-8 THC products generally don’t abide by these laws. Many – if not most – delta-8 THC products are edibles, and these for example break the rules of the FDCA. Delta-8 THC is not generally recognized as safe and it isn’t exempt from the requirement to be generally recognized as safe. 

So overall, the issue is complicated, and you should base your opinion on the expert viewpoints given above and not anyone who provides you with a short, simple answer to this question.


Which States Are Getting It Right on Delta-8 THC?

With state laws varying so much – from having sensible regulatory systems, complete with lab testing requirements, right down to having not even passed a one-page bill to make it illegal to sell kids THC – it’s natural to wonder who is getting it right. 

Rod Kight points to Tennessee as an example of the right way to do things, “Tennessee has the right approach to cannabinoid regulation, including D8, in its recently enacted law, SB 378. Rather than attempting to prohibit D8 (or other cannabinoids), the new TN law makes D8 and other cannabinoids subject to reasonable regulations regarding safety, access by minors, licensing, and taxation. This is a pragmatic approach that aligns with the federal farm bill, approaches regulation based on what is actually happening in the market, and allows access to it by consumers while simultaneously addressing the issues that matter.” 

Shawn Hauser notes that the current landscape makes implementing good state-level regulation challenging, “I don’t think any state has a perfect solution, because it’s very difficult for states to adopt effective regulatory approaches given the current federal legal landscape for both cannabis and hemp. The cannabis plant needs to be federally legal and subject to consistent product safety standards that are consistent and practical to enforce, rather than be subject to the arbitrary legal lines between cannabis and hemp that differ from state to state and intersect with the federally illegal marijuana market, causing enforcement challenges and consumer confusion.” 

But continues, “I do think there are some smart state approaches that should inform an effective federal framework and best state practices. Utah and West Virginia, for example, have good models as far as product and/or retail registrations and lists of permitted products. A growing number of states have imposed age limits and robust testing methods that are sufficient to test for contaminants, residual solvents, and heavy metals and ensure product safety. Many states, including Colorado, Oregon, and others have adopted significant packaging and labeling requirements appropriate for these products, as well as advertising and marketing regulations that prohibit marketing targeted towards minors and false and misleading marketing. States like Florida are allocating appropriate resources to enforce such laws.” 

While there is certainly some disagreement about which states are getting it right on delta-8, it’s clear that there are many areas of overlap in terms of the priorities for delta-8 THC regulation. In particular, both Shawn and Rod point to age restrictions, safety testing requirements and a sensible approach to labeling and packaging rules. 

Most importantly, basically everyone agrees that delta-8 THC should not be legally available to minors, and at the very least states should do something like South Dakota did and simply pass a bill with the goal of establishing an age limitation with little else present. If you’re a legislator and you think any type of “full regulations” bill would cause so much controversy it wouldn’t be able to pass, considering a single, focused bill to achieve this goal is something almost everyone can get on board with. 

But if it’s possible to do more, Shawn and Rod both point to states that have put in regulations to protect consumer safety. For example, in Tennessee, SB 378 requires the Department of Agriculture to establish pass/fail levels for required safety tests for heavy metals, microbials, mycotoxins, pesticides and residual solvents. The industry has pushed towards providing Certificate of Analysis (COAs) to consumers, but CBD Oracle research has shown that this step is often missed – and the law can make them fill this gap.


What Will Happen Next? The Future of Delta-8 THC

The problems created by the 2018 Farm Bill are still being fought out in courts across the country to this day, but the 2023 Farm Bill is right around the corner. With the DEA signaling a move towards the criminalization of delta-8 and the likelihood that at least some of the support the 2018 Farm Bill received came with the belief that it wasn’t intoxicating, things don’t exactly look great. 

Shawn Hauser agrees that things will become more restrictive, “I think the coming years could see more restrictive federal laws or guidance supporting the DEA’s position, with it being possible that the 2018 Farm Bill amends the definition of hemp to be more limiting, or that Congress propose a regulatory framework for hemp that limits synthetics, semi-synthetics or THC content in finished hemp products. Any federal action will undoubtedly take some time, and in the meantime, we will continue to see states vary significantly in their approach—with some states prohibiting these products or only allowing them in marijuana dispensaries, and others allowing them with some form of regulatory frameworks on these products—including manufacturing, testing, and labeling standards. I think we will continue to see state enforcement agencies struggle with enforcing online sales and securing the appropriate resources and infrastructure to act as mini-FDA’s in the federal FDA’s vacuum.” 

Rod Kight is a little more optimistic about what the future holds for delta-8, “Although D8’s popularity initially arose in ‘red states’ without access to D9 products, we have not seen its sales wane as access to D9 products in those states have increased. In fact, D8 has even become popular in marijuana states. I believe this is because D8 has properties that are similar to, but different enough from, D9 that consumers desire it. For this reason, D8 will remain an important product category for the foreseeable future. Additionally, I do not anticipate that it will be substantially impacted by the next Farm Bill.” 

The fact that the experts are divided on this shows perfectly how uncertain the whole thing is. The 2018 Farm Bill changed things dramatically, and the 2023 bill could either slam shut the door opened in 2018 or leave it wide open. The only thing we would hope for is that this time, the federal government will think more carefully about the implications of what they propose.

Whatever your opinion on which components of hemp should be legal and which shouldn’t be, this game where we spend years arguing about the nebulous congressional intent hiding behind an ultimately arbitrary and likely ill-considered definition has to end. 

Most of all, we need clarity.

Conclusion: Delta-8 THC Is Here, Legal or Not

So the legal status of delta-8 THC is pretty fuzzy in many states and more nuanced than we might like at the federal level, but there’s one point we should keep in mind. Delta-8 THC is here. It’s still sold in gas stations. It’s still sold in many states that have banned it. And it’s still not even illegal for kids to buy it in some states. 

As Rod Kight pointed out, it was initially popular in states without access to legal cannabis, as a way for people in less-liberal states to get high in a semi-legal way. In other words, when access to a product people want – cannabis – is restricted, people find an alternative, hemp delta-8. And states like New York and Hawaii show that when access to delta-8 THC is restricted, people can still get it anyway

So as the federal government possibly marches towards another ban of a substance that people obviously take a lot of interest in (regardless of its legal status) and the cannabis chemists start scouring old papers looking for a new old cannabinoid that will debatably dance around the next band-aid law, we can’t help but wonder: haven’t we learned anything?


Our Research Methodology

In order to produce this state-by-state guide, we read through all relevant state laws that have either been passed or were still pending at the time of writing, as well as promulgated regulations, draft regulations and agency guidance, in addition to the 2018 Farm Bill. The relevant laws were read in their entirety, cross-referencing with other pieces of legislation where needed. Generally speaking, we focused on some key areas for each state:

  1. Does the state have a commercial hemp program?
  2. Is “hemp” defined in line with the 2018 Farm Bill, or are there differences in the definition?
  3. Is hemp exempted from the state’s controlled substances bill for both marijuana/cannabis and THC?
  4. Are there exemptions to a state’s food laws that carve out hemp ingredients as an adulterant?
  5. Are there any specific restrictions on the sale of products for human consumption that would affect delta-8 THC? E.g. is it illegal to sell products created through isomerization?
  6. Is delta-8 THC practically available in the state? Despite state law, delta-8 THC is still sold as hemp in some states where sales are not legal. Likewise, in some places it is theoretically available in the state marijuana industry, but practically there are very few or no products for sale.
  7. Are there any relevant outstanding legal actions in the state?

Based on the research and the answers to these questions, we produced short paragraphs detailing the law in each state, which are being expanded in specific articles about each state. Following the initial draft, the content was checked for accuracy by Neil Willner, co-chair of the Cannabis Group at Royer Cooper Cohen Braunfeld. Based on the feedback and suggestions, laws were re-checked and the content was updated accordingly, until the content was agreed to be accurate.

The post will be continuously updated and reviewed as the situation changes. While this should ensure essentially continuous accuracy, there may be short delays as we work through the above process for any new changes. 

Learn more about our research methodology.

Disclaimer

The information provided on this website does not, and is not intended to, constitute legal advice or reliable statements of the status of any laws. The laws are different from state to state and are constantly evolving.

Sources


Editor’s note: 

October 13, 2023: This article was originally published on July 17, 2021, by Ali Mans Cornwell, and was rewritten and fact-checked on October 13, 2023.

October 31, 2023: We moved Washington D.C. to the list of “Banned” states.

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