Delta-8 is Available in 29 States While Others Try to Ban it

Several U.S. states preemptively restrict or outright ban delta-8 THC as federal regulators swoop in to clarify its legality.

Holding Delta 8 THC oil bottle

Delta-8 THC has been a sensation in the country. Its popularity soared throughout 2020 and many believed its reign of euphoric bliss would continue into 2021 and beyond. However, the federal government and the DEA are swooping in to ruin all the fun. 

In April, alone, several U.S. states either restricted or banned delta-8 THC, sparking outcry from users, companies, manufacturers, and vendors within the cannabis industry.  

So, why are U.S. states banning delta-8 THC? Which ones have already banned it? What have the federal government and the DEA got to do with this?

Where is delta-8 THC legal?

  • Delta-8-THC’s reign of blissful euphoria in the U.S. could be coming to an end — 18 states have already restricted or banned it, while 4 others are reviewing its legality. 
  • Delta-8 is stuck in a legal grey area. The 2018 Farm Bill legalized all hemp and hemp compounds but the DEA still believes it’s a controlled substance. 
  • The US Hemp Authority has stopped certifying delta-8 THC products and advises companies to cease producing delta-8.
  • Texas has not prohibited delta-8 despite a controversial bill going through the House. 
  • New York is now the most recent state to put restrictions on the production and sale of delta-8 products.

Which states have regulated, restricted, or banned delta-8?

Currently, 18 U.S. states have restricted or banned delta-8 THC and a further four states are currently reviewing its legal status. 

The 18 U.S. states that have regulated, restricted, or banned delta-8:

  1. Alaska
  2. Arizona
  3. Arkansas 
  4. Colorado
  5. Delaware
  6. Kentucky 
  7. Idaho 
  8. Iowa
  9. Mississippi 
  10. Montana
  11. New York
  12. Rhode Island
  13. Utah
  14. Vermont
  15. Washington
  16. Michigan (comes into effect October 2021)
  17. North Dakota
  18. Connecticut

The 4 states currently reviewing delta-8’s legal status:

  1. Alabama
  2. Illinois
  3. Oklahoma 
  4. Oregon 

Live update: Where is delta-8 legal?

Last updated: October 2021

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 legality map in the United States
Delta-8 THC legality in the United States.

Delta-8 is available in 28 states + 1 district:

  1. California
  2. Nevada
  3. Wyoming 
  4. New Mexico
  5. South Dakota
  6. Nebraska
  7. Kansas
  8. Texas
  9. Minnesota 
  10. Missouri 
  11. Louisiana 
  12. Wisconsin 
  13. Indiana
  14. Tennessee 
  15. Ohio
  16. Georgia
  17. Florida
  18. West Virginia
  19. Virginia
  20. North Carolina
  21. South Carolina
  22. Washington DC
  23. Maryland
  24. Pennsylvania 
  25. New Jersey
  26. Maine
  27. New Hampshire
  28. Massachusetts
  29. Hawaii

What is delta-8 THC?

Delta 8 thc indica joints
Delta-8 THC pre-rolls made with an Indica strain. Photo: Elsa Olofsson/Oracle

Delta-8 is one of 113 cannabinoids found in varieties of cannabis (hemp or marijuana) and a variant of delta-9-tetrahydrocannabinol (THC). It’s psychoactive and intoxicating, causing a “high” when consumed. 

However, when compared to delta-9 THC, the effects are far milder and better suited to beginners looking to enjoy the euphoric effects without the side effects commonly associated with delta-9. Delta-8 THC can now be found in several product types such as distillates, vape cartridges, oils, and flower. If you’re looking for high quality products, see Oracle’s picks for the best delta 8 THC products available to buy online.

Why are U.S. states now restricting or banning delta-8 THC?

The reason why several U.S. states are restricting or banning delta-8 is the result of confusing, conflicting, and unclear federal guidelines. This confusion pushed delta-8 into a legal grey area. Were delta-8 users consuming a potentially illegal substance? Were delta-8 producers creating a controlled substance? Were delta-8 vendors selling prohibited products? These questions had vague answers and the concerns were (and still are) very real. 

Delta-8 stuck between the Farm Bill and the DEA

In 2018, the federal government under the Trump administration, signed the Agriculture Improvement Act (2018 Farm Bill), legalizing hemp and all hemp-derived cannabinoids. The bill also removed hemp-derived “tetrahydrocannabinols” such as THCA, THCV, and delta-8 THC from the list of controlled substances. Delta-9 was the only one to stay on it. 

However, in 2020, the DEA issued a controversial interim final rule that sought to bring the Farm Bill further in line with the Controlled Substances Act (CSA), spelling trouble for not only delta-8 but also for delta-10 THC.

Within this final rule, the DEA stated all “synthetically-derived tetrahydrocannabinols remain schedule I controlled substances”. Why is this significant and how is it related to delta-8? Well, in order for companies to have enough delta-8 THC in their products, it must be converted from cannabidiol (CBD) via a structural isomerization process conducted under laboratory conditions. 

This isomerization process takes CBD, alters its molecular structure, and turns it into delta-8. Since it’s produced by chemical or biochemical synthesis and not sourced straight from the hemp plant itself, the DEA believes delta-8 is a synthetic substance. 

The forgotten Federal Analog Act

Amidst the chaos, many have forgotten about the Federal Analog Act, an important section within the Controlled Substances Act (CSA) created to fight against synthetic “designer drugs” way back in the 1980s. 

The specific purpose of the Federal Analog Act is to identify chemicals and substances which are significantly similar to illegal drugs and categorizing them as controlled substances under Schedule I or Schedule II of the CSA. 

In this case, it’s not implausible to suggest delta-8, a chemically similar analog of federally illegal delta-9 THC, is actually a controlled substance.

Is delta-8’s safety in question?

Yes. Delta-8’s safety is in question. Why? Because it’s a psychoactive and intoxicating delta-9 THC variant that’s recently exploded into an unregulated market with very little research verifying its effects.

Smoking delta-8 thc
Smoking a delta-8 THC joint.

How the industry is responding

The mass exodus of delta-8 THC across the U.S. has been met with a fair amount of silence. This isn’t surprising, to be honest. The U.S. states have been extremely covert about their handling of delta-8 over the past month or so. The lightning pace at which delta-8 is currently being outlawed doesn’t help either. 

One of the most notable responses is from the US Hemp Authority, a renowned third-party hemp certification agency. 

The agency’s president, Marielle Weintraub, believes the culling of delta-8 among the U.S. states isn’t likely to stop, simply because it’s now perceived as a federally controlled substance. 

“Do not produce or sell delta-8 products without a permit to produce or sell THC as a controlled substance,” said Weintraub. “The correct path for the legal production and sale of delta-8 products is through a state-licensed adult recreational or medical marijuana operator”. 

At this time, no delta-8 products will be certified by the US Hemp Authority. 

Delta-8 THC will remain legal in Texas (for now)

Delta-8 THC will remain legal in Texas after HB3948, a controversial bill that attempted to prohibit delta-8 products, died in the legislature. 

Hometown Hero, a stakeholder group in the cannabis industry, spearheaded a campaign against the bill alongside various other advocacy groups and delta-8 vendors. According to Hemp Today, the group sat in on the proceedings and rapturously cheered when the bill failed.

New York becomes the latest US state to restrict delta-8 THC

New York now becomes the most recent U.S. state to restrict delta-8 THC. The New York State health department’s amendments of the Official Compilation of Codes, Rules and Regulations of the State of New York restricts manufacturers, companies, and vendors from producing, selling, and distributing delta-8 products. 

Excerpt

“(a) All cannabinoid hemp processors shall: … (11) not use synthetic cannabinoids, or Δ8-tetrahydrocannabinol or Δ10-tetrahydrocannabinol created through isomerization, in the extraction or manufacturing of any cannabinoid hemp products.”

However, New York has not banned delta-8. The state has only restricted the production of delta-8 (CBD to delta-8 THC conversion process). The use and possession of delta-8 are still legal.  

Michigan chooses to regulate but not ban delta-8 THC

Effective October 11, 2021, Michigan will regulate but not ban delta-8 and delta-8 THC products. This comes after Michigan Gov. Gretchen Whitmer signed a package of eight separate bills including HB. 4517 and HB. 4742, each defining “THC” and modifying the definitions of “hemp” and “marijuana”.

According to reports, delta-8 will be regulated by the Michigan Marijuana Regulatory Agency (MRA) but there’s no talk of outright banning the cannabinoid. Delta-8 producers will need to have their products go through official procedures and be rigorously tested before going on sale to ensure public health and safety.

While the health and safety of Michigan residents are important, some smaller hemp and delta-8 producers will now face tougher financial hurdles.

Delta-8 could become federally outlawed despite outcry from the industry

As the federal government closes in and many U.S. states are scrambling to close the legal loopholes, delta-8’s fate isn’t looking good.

What’s concerning is the federal government and its band of DEA merry men will be relentless in their quest to shut delta-8 down, leaving hemp users, manufacturers, producers, and vendors in a mess. The booming delta-8 market is a goldmine for many hemp companies and to have that taken away will be a huge blow. 

We hope other U.S. states will follow Texas and fight against the federal government’s attempts to shut down the thriving delta-8 THC market so that delta-8 may remain available to people who need it across the country.