Delta-8 is Available in 28 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 — 19 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
  • The delta-8 ban in Texas was lifted after a judge temporarily blocked the state from classifying it as a controlled substance
  • 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, 19 U.S. states have restricted or banned delta-8 THC and a further four states are currently reviewing its legal status. 

The 19 U.S. states that have regulated, restricted, or banned delta-8:

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

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: January 2022

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 legality map in the United States
Hemp Delta-8 THC Legality By State

Delta-8 is available in 27 states + 1 district:

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

State-by-state guide to delta-8’s legality

Alabama (AL)

Delta-8 is legal in Alabama and is not considered a prohibited controlled substance following the passage of Senate Bill 225, which legalized hemp and hemp-derived compounds, coinciding with the federal Agriculture Improvement Act (Farm Bill). The passing of SB 225 means the use, possession, sale, distribution, purchase, and production of delta-8 products are permitted under state law. However, at the beginning of 2021, Alabama lawmakers tried to ban delta-8 and delta-10 and place it on its list of controlled substances with House Bill 2. Fortunately, the bill failed to pass, much to the relief of delta-8 vendors operating within the state. Learn more about the legal status of delta-8 in Alabama.

Alaska (AK)

Alaska doesn’t permit the use, possession, sale, distribution, or production of delta-8 and classifies it as a Schedule IIIA controlled substance under state law. Schedule IIIA includes all tetrahydrocannabinols such as delta-10 and THC-O.  Possession of delta-8 ranges from a Class C misdemeanor to a felony, depending on quantity and intent. 

Arizona (AZ)

Delta-8 is illegal in Arizona under state law. The use, possession, sale, distribution, and production of delta-8 products is prohibited and is classified as a Schedule I controlled substance. Schedule I includes all tetrahydrocannabinols such as delta-10 and THC-O, as well as marijuana. Penalties for delta-8 possession are likely the same as marijuana possession. If caught with two pounds of marijuana or less, it’s a Class 6 felony punishable by up to two years in prison. 

Arkansas (AR)

Delta-8 is illegal in Arkansas under state law. The use, possession, sale, distribution, and production of delta-8 and its products is not permitted and is classified as a Schedule IV controlled substance, placing it alongside all other tetrahydrocannabinols. Penalties for delta-8 possession in Arkansas vary depending on quantity and intent. Possession of fewer than 28 grams of delta-8 is a Class A misdemeanor punishable by up to one year in prison. If you have four or more criminal convictions on your record, possession of fewer than 28 grams of delta-8 is a Class D felony punishable by up to six years in prison. 

California (CA)

Delta-8 is illegal and prohibited in California under state law. Using, possessing, selling, distributing, and producing hemp and marijuana-derived delta-8 products are prohibited with risk of penalty or prosecution. While you cannot possess any quantity of hemp-derived delta-8, you can purchase up to 28.5 grams of marijuana-derived delta-8 from a licensed dispensary. 

Colorado (CO)

Surprisingly, delta-8 is not legal in Colorado despite very relaxed medical and recreational marijuana laws. The state does not permit the use, possession, sale, distribution, and production of delta-8 products following a notice from the Colorado Department of Health & Environment (CDPHE). The notice states, “chemically modifying or converting any naturally occurring cannabinoids from industrial hemp is non-compliant with the statutory definition of ‘industrial hemp product’”. As a result, Colorado considers delta-8 a controlled substance, as outlined in SB 14-184 and the Uniform Controlled Substances Act. Learn more about the legal status of delta-8 in Colorado.

Connecticut (CT)

Contrary to common belief, delta-8 is currently not legal in Connecticut. In mid-2021, Connecticut lawmakers passed Senate Bill 1201, providing regulatory oversight to the state’s adult-use cannabis market. As outlined in the bill, all forms of cannabis containing more than 0.3% of any tetrahydrocannabinol are classified as marijuana. Since Connecticut enjoys legalized medical and recreational marijuana, only state-licensed marijuana dispensaries can sell delta-8 products. However, state licensing applications aren’t available yet, which essentially makes delta-8 temporarily restricted. 

Delaware (DE)

Delta-8 is not legal in Delaware, meaning the state does not permit the use, possession, sale, distribution, and production of delta-8 products under state law. While Delaware recently decriminalized simple marijuana possession in small quantities, the state clarifies all tetrahydrocannabinols are banned substances under Schedule I of its Uniform Controlled Substances Act. Penalties for delta-8 possession range from fines to extended prison times depending on quantity and intent.

Florida (FL)

Hemp-derived delta-8 is legal in Florida under state law, meaning its use, possession, sale, distribution, and production is permitted within its borders without risk of penalty or prosecution. There are also no possession limits. However, delta-8 derived from marijuana is not legal in Florida. Marijuana and marijuana-derived compounds are strictly illegal. Learn more about the legal status of delta-8 in Florida.

Georgia (GA)

Hemp-derived delta-8 is legal in Georgia. The use, possession, sale, distribution, and production of delta-8 products is legal under state law without fear of penalty or prosecution. Marijuana-derived delta-8 is illegal, though some cities and counties have decriminalized simple possession. Penalties for marijuana-derived delta-8 possession vary depending on quantity and intent. Possession of 1 ounce or less of marijuana or marijuana-derived delta-8 is a misdemeanor punishable by up to one year in prison and a maximum $1,000 fine. Possession of more than 1 ounce is a felony punishable by up to five years in prison and a maximum $5,000 fine. Learn more about the legal status of delta-8 in Georgia.

Hawaii (HI)

Hemp-derived delta-8 is perfectly legal in Hawaii under state law, which coincides with federal law. The use, possession, sale, distribution, and production of delta-8 products are permitted without risk of penalty or prosecution following the passage of the Hawaii House Bill 2689, which legalized hemp and hemp-derived compounds, including delta-8 and delta-10. However, marijuana and marijuana-derived delta-8 are not legal 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, including delta-8, as outlined in the Idaho Uniform Controlled Substances Act. Therefore, hemp-derived delta-8 is illegal in Idaho under state law, which means the use, possession, sale, distribution, and production of delta-8 products are not permitted anywhere within the state. Likewise, marijuana and marijuana-derived delta-8 are strictly forbidden. Penalties for marijuana-derived delta-8 possession are harsh. Possession of 3 ounces or less is punishable by up to 1 year in prison and a fine of up to $1,000. 

Illinois (IL)

Hemp-derived delta-8 is legal in Illinois, and its use, possession, sale, distribution, purchase, and production are permitted under Illinois state law, as outlined in its Industrial Hemp Act. However, following warnings from the FDA and CDC over the safety of delta-8, Illinois lawmakers are moving to regulate the safety of delta-8 products, but not entirely restrict or ban them. Marijuana and marijuana-derived delta-8 are also legal under state law following the passage of the Illinois Cannabis Regulation & Tax Act. Under this law, Illinois residents can possess up to 30 grams of cannabis or 500 mg of THC, presumably including delta-8. 

Indiana (IN)

Indiana legalized hemp and all hemp-derived compounds following Senate Bill 156, which aligned its laws with the federal Agriculture Improvement Act (Farm Bill). Under state law, hemp-derived delta-8 is currently legal in Indiana, and its use, possession, purchase, sale, distribution, and production are permitted within state borders. However, since medical and recreational cannabis is illegal in Indiana, marijuana-derived delta-8 is also prohibited under state law. First-time convictions of marijuana-derived products in any quantity can be punishable by up to 180 days in jail. Learn more about the legal status of delta-8 in Indiana.

Iowa (IA)

Hemp-derived delta-8 is a controlled substance and not legal in Iowa. Under state law, the use, possession, sale, distribution, purchase, and production of delta-8 products are not permitted. Likewise, marijuana and marijuana-derived delta-8 are also prohibited under Iowa state law. Possession of hemp or marijuana-derived delta-8 carries less strict penalties than other US states currently restricting delta-8 products. First-time offenders can face up to six months in jail and pay up to a $1,000 fine. 

Kansas (KS)

Hemp-derived delta-8 is legal and not considered a controlled substance in Kansas. Under state law, which coincides with federal law outlined in the Agriculture Improvement Act (Farm Bill), the use, possession, sale, distribution, purchase, and production of delta-8 products is permitted. On the other hand, since Kansas remains one of the few US states prohibiting medical and recreational cannabis, marijuana-derived delta-8 is not legal. Possession of marijuana-derived delta-8 is a Class B misdemeanor punishable by up to six months in prison and a maximum fine of $1,000. 

Kentucky (KY)

While many believe delta-8 is legal in Kentucky, it isn’t. According to reports, the Kentucky Department of Agriculture’s legal counsel published a memo stating hemp and marijuana-derived delta-8 is a controlled substance and illegal under federal law, meaning it’s also prohibited under state law. Police have raided several delta-8 vendors. The Kentucky Hemp Association is currently suing the state and asking for an injunction to stop any further raids from occurring. 

Louisiana (LA)

Delta-8 is legal in Louisiana following the passage of House Bill 491, a crucial piece of legislation aligning the state’s hemp laws with the federal Agriculture Improvement Act. This bill essentially legalized hemp-derived delta-8 under state law. However, while medical cannabis is legal but heavily regulated, recreational adult-use cannabis remains decriminalized. Penalties for possessing marijuana-derived delta-8 vary depending on quantity and intent. Possession of 14 grams or less is punishable by up to a $100 fine. Any higher than this, and you can face jail time. 

Maine (ME)

Hemp-derived delta-8 is not considered a state-controlled illegal substance and is perfectly legal under state law, which coincides with federal law after the passage of Legislative Document 1159. The use, possession, sale, distribution, purchase, and production of delta-8 products are permitted in the state without risk of penalty or punishment. Likewise, marijuana and marijuana-derived delta-8 are also legal in Maine under state law. 

Maryland (MD)

Hemp-derived delta-8 is legal in Maryland and not considered a controlled substance under Maryland state law following the passage of House Bill 698 in 2018. This bill legalized hemp and hemp-derived chemical compounds, including delta-8. The use, possession, sale, distribution, purchase, and production of delta-8 products are permitted with risk of penalty or prosecution. Marijuana-derived delta-8 is illegal, but possession of 10 grams or less is decriminalized.  

Massachusetts (MA)

Hemp-derived delta-8 is legal in Massachusetts and is not listed as a controlled substance following the passage of Bill H.4001, which coincides with the federal hemp laws set out by the Agriculture Improvement Act. This vital bill means the use, possession, sale, distribution, purchase, and production of delta-8 derived from hemp plants are legal under state law. Similarly, marijuana and marijuana-derived delta-8 are also legal for adults aged 21+ following the Massachusetts ballot initiative (Question 4) in 2016. Users are allowed to possess 1 ounce of marijuana-derived delta-8. 

Michigan (MI)

Hemp-derived delta-8 is restricted. Only state-regulated delta-8 products can be sold, distributed, and manufactured following the passage of House Bill 4517, signed by Governor Whitmer. No delta-8 vendor in Michigan can sell delta-8 products without proper licensing from the Michigan Marijuana Regulatory Agency (MMRA), which regulates marijuana and marijuana-derived delta-8 THC. 

Minnesota (MN)

Delta-8 THC is legal in Minnesota. It does not consider delta-8 a controlled substance under state law after the passage of the Minnesota Industrial Hemp Development Act, which was later amended to align with the federal Agriculture Improvement Act. Therefore, the use, possession, sale, distribution, purchase, and production of hemp-derived delta-8 products are permitted without risk of penalty or prosecution. Marijuana and marijuana-derived delta-8 are illegal but decriminalized. Possession of 42.5 grams or less of marijuana-derived delta-8 is a petty misdemeanor punishable by a $200 fine. 

Mississippi (MS)

Delta-8 is not legal in Mississippi under state law and is considered a prohibited controlled substance. The state’s 2019 House Bill 1547 legalized hemp and hemp-derived compounds, aligning its laws with the federal Agriculture Improvement Act (Farm Bill). However, the bill did not remove THC or any of its isomers from the controlled substances list, including delta-8. The use, possession, sale, distribution, purchase, and production of delta-8 are not permitted. Marijuana and marijuana-derived delta-8 are also not permitted under state law. Possession of 30 grams or less of marijuana-derived delta-8 is punishable by a maximum $200 fine (first-time offenders).  

Missouri (MO)

Delta-8 is perfectly legal in Missouri and doesn’t categorize it as a controlled substance following the passage of House Bill 2034, which legalized hemp and hemp-derived compounds. This bill means the use, possession, sale, distribution, purchase, and production of hemp-derived delta-8 is legal under state law. Marijuana is illegal but decriminalized if caught with 10 grams or less. Penalties for marijuana or marijuana-derived delta-8 possession are punishable by a fine. However, it’s still classified as a criminal misdemeanor. 

Montana (MT)

Delta-8 is a state-controlled substance and not legal in Montana under state law following amendments to its Controlled Substances Act in 2019. The legal status of delta-8 means the use, possession, sale, distribution, and production of delta-8 products are prohibited within state borders. However, recreational marijuana for adults aged 21+ is legal in Montana, though it’s unclear whether marijuana-derived delta-8 is permitted under the same cannabis laws.

Nebraska (NE)

Delta-8 is legal in Nebraska. It’s not considered a controlled substance under state law following the Nebraska Hemp Farming Act (Legal Bill 657), which has subsequently been amended and revised since its existing hemp laws to coincide with the federal Agriculture Improvement Act (Farm Bill). This bill means the use, possession, sale, distribution, purchase, and production of hemp-derived delta-8 is legal in Nebraska under state and federal law. 

Nevada (NV)

Delta-8 is illegal in Nevada and a controlled substance under Schedule I the state’s Controlled Substances Act, placing it alongside delta-9 THC and other isomers. Nevada’s categorization of delta-8 means the use, possession, sale, distribution, purchase, and production of hemp-derived delta-8 products are prohibited under state law. Possession of hemp-derived delta-8 can be punishable by jail time or significant fines. 

New Hampshire (NH)

Under state law, delta-8 is legal in New Hampshire and isn’t considered a prohibited controlled substance following the passage of House Bill 459, which broadly legalized hemp and hemp-derived compounds, including delta-8. The state’s Controlled Substances Act also doesn’t specifically list delta-8 as illegal. Recreational marijuana or marijuana-derived delta-8 is not legal but decriminalized in New Hampshire. Possessing small quantities (three-quarter ounces or less) of marijuana-derived delta-8 products is a civil violation and punishable by a maximum fine of $100. 

New Jersey (NJ)

Delta-8 THC is legal in New Jersey and not classified as a controlled substance under state law following the passage of Bill A5322, which later became the New Jersey Hemp Program. This program legalized hemp and hemp-derived compounds, including delta-8. Therefore, the use, possession, sale, distribution, purchase, and production of hemp-derived delta-8 are legal in New Jersey under state law. New Jersey recently legalized recreational cannabis after A-21 was signed into law in 2021, meaning marijuana-derived delta-8 is also permitted under state law. 

New Mexico (NM)

Delta-8 is legal in New Mexico and not categorized as a controlled substance under state law according to the New Mexico Hemp Manufacturing Act, which legalized hemp and hemp compounds, including delta-8. Therefore, the use, possession, sale, distribution, purchase, and production of hemp-derived delta-8 are legal without risk of penalty or prosecution. New Mexico also legalized recreational marijuana for adults aged 21+ following the New Mexico Cannabis Regulation Act, meaning marijuana-derived delta-8 is also legal under state law. 

New York (NY)

Delta-8 is restricted in New York. The sale, distribution, and production of delta-8 products are banned in the state following an announcement from the New York Cannabis Control Board (CCB), citing lack of safety and improper mislabeling. A CCB spokesperson later stated delta-8 might be regulated later through an adult-use program similar to its recreational marijuana program. However, it’s unclear whether the use and possession of hemp or marijuana-derived delta-8 are punishable under state law. 

North Carolina (NC)

Delta-8 is legal in North Carolina and is not categorized as a controlled substance under state law following the passage of Senate Bill 352. The bill amended the North Carolina Controlled Substances Act, excluding all hemp-derived cannabinoids, including delta-8. Delta-8’s exclusion from the list of controlled substances means its use, possession, sale, distribution, purchase, and production is permitted within state borders. However, neither medical cannabis nor recreational marijuana is legal in North Carolina, meaning marijuana-derived delta-8 use and possession is illegal within the state. Possession of 0.5 ounces of marijuana or marijuana-derived delta-8 is a misdemeanor punishable by a maximum $200 fine. Learn more about delta-8’s legality in North Carolina.

North Dakota (ND)

Delta-8 is illegal in North Dakota and is considered a controlled substance under state law following the passage of North Dakota House Bill 1045. This bill amended the state’s already existing hemp bill to include delta-8 as a prohibited substance alongside delta-9 THC specifically. As of 2021, the use, possession, sale, distribution, purchase, and production of hemp-derived delta-8 products are not permitted within the state. Marijuana and marijuana-derived delta-8 are also illegal under state law. 

Ohio (OH)

Hemp-derived delta-8 is legal in Ohio and isn’t classed as a controlled substance under state law following the passage of Ohio Senate Bill 57, which legalized hemp and hemp compounds, including delta-8. This bill means the use, possession, sale, distribution, purchase, and production of delta-8 THC products are permitted within the state without risk of penalty or prosecution. While medical marijuana is legal in Ohio, recreational cannabis remains illegal, as is the recreational use of marijuana-derived delta-8 for non-medicinal purposes. Learn more about the legal status of delta-8 in Ohio.

Oklahoma (OK)

Hemp-derived delta-8 is legal under Oklahoma state law and is not listed as a controlled substance following the enactment of the Oklahoma Industrial Hemp Program. This act legalized hemp and hemp-derived compounds, including delta-8, meaning the use, possession, sale, distribution, purchase, and production of delta-8 products is perfectly legal across the state. However, recreational marijuana and marijuana-derived delta-8 are not legal. 

Oregon (OR)

Delta-8 is legal in Oregon but regulated by the Oregon Liquor and Cannabis Commission (OLCC) following the passage of House Bill 3000, signed into law by Governor Kate Brown. The bill creates a new class of cannabinoids known as “Adult Use Cannabinoids,” including delta-8, delta-10, and other THC isomers. The sale of any product with a THC level above 0.5 mg is legal to adults aged 21+ unless the user is a medical marijuana cardholder below 21 but over 18. However, unlike recreational and medical marijuana in Oregon, there are no restrictions on the sale of delta-8. Users can find delta-8 products in physical retail stores and online. 

Pennsylvania (PA)

Delta-8 is perfectly legal in Pennsylvania and is not a controlled substance under state law following the passage of House Bill 967 in 2016, two years before the federal Farm Bill was amended. This bill legalized hemp and hemp-derived compounds across the state, including hemp-derived delta-8. Therefore, the use, possession, sale, distribution, purchase, and production of hemp-derived delta-8 products are permitted in Pennsylvania without fear of penalty or prosecution. 

Rhode Island (RI)

Delta-8 is not legal in Rhode Island under state law and is classified as a Schedule I controlled substance under the state’s Uniform Controlled Substances Act. This classification means the use, possession, sale, distribution, purchase, and production of hemp and marijuana-derived delta-8 products are strictly forbidden. Possession of an ounce or less of delta-8 as a first-time offender is a civil violation and punishable by a maximum $150 fine. A subsequent offense is a misdemeanor punishable by up to one year in prison and a $500 fine.  

South Carolina (SC)

Delta-8 is tentatively legal in South Carolina, but Attorney General Alan Wilson claims delta-8 products derived from hemp plants carrying the federal 0.3% THC limit aren’t permitted anywhere in the state. Wilson’s comment on the legality of delta-8 in South Carolina means the use, possession, sale, distribution, and production of delta-8 products is in a grey area but likely not yet officially prohibited. Learn more about delta-8’s legality in South Carolina.

South Dakota (SD)

South Dakota has had a tough stance on all forms of cannabis and cannabis-derived compounds, including delta-8, delta-10, and CBD. However, hemp-derived delta-8 is currently legal under state law, which doesn’t specifically include delta-8 as a controlled substance, meaning the use, possession, sale, distribution, and production of delta-8 products are not prohibited. On the other hand, marijuana and marijuana-derived delta-8 products are strictly illegal. Possession of 1 ounce or less of marijuana-derived delta-8 carries no penalty. However, possession of 1-2 ounces of marijuana-derived delta-8 is punishable by up to a year in prison and a maximum $2,000 fine. 

Tennessee (TN)

Delta-8 is legal in Tennessee and isn’t considered a controlled substance following the passage of Senate Bill 354. This bill legalized hemp and hemp-derived compounds, including delta-8. It also removed them from the state’s list of controlled substances. Therefore, the use, possession, sale, distribution, purchase, and production of delta-8 products are permitted under state law without risk of penalty and prosecution. Marijuana and marijuana-derived delta-8 are not legal in Tennessee and are punishable under state law. The penalties for marijuana-derived delta-8 use and possession vary depending on quantity and intent. Possession of half an ounce is punishable by up to 1 year in prison and a maximum $250 fine. Learn more about the legal status of delta-8 in Tennessee.

Texas (TX)

Delta-8 is temporarily legal in Texas following a long and arduous battle between state lawmakers and delta-8 vendors. In September, Texas lawmakers attempted to ban delta-8 products with House Bill 2593. This bill would have limited the quantity of all tetrahydrocannabinols to 0.3%, making it near-impossible to produce effective delta-8 THC products. Fortunately, the bill failed to pass and died in the legislature. 

However, over a month later, the Texas Department of State Health Service (DSHS) updated its website, claiming delta-8 is an illegal controlled substance prohibited within the state. Austin-based delta-8 vendor, Hometown Hero, fought against the DSHS, sued them, and asked for an injunction. In November, the court granted Hometown Hero’s application for a temporary injunction, placing delta-8 as legal for the time being. Learn more about the legal status of delta-8 in Texas (and stay up to date with any recent changes with a live timeline of events).

Utah (UT)

Delta-8 is illegal in Utah and is categorized as a prohibited controlled substance under the Utah Controlled Substances Act. This categorization of delta-8 means the use, possession, sale, distribution, purchase, and production of delta-8 products are not permitted anywhere in Utah under state law without risk of penalty or prosecution. Recreational marijuana and marijuana-derived delta-8 are also illegal under state law. The use and possession of delta-8 products carry strict penalties, ranging from significant fines to lengthy jail times depending on quantity and intent. For example, possession of less than 1 ounce of marijuana-derived delta-8 is a Class B misdemeanor punishable by up to six months in jail and a maximum fine of up to $1,000. 

Vermont (VT)

Delta-8 is not legal in Vermont following an announcement from the Vermont Agency of Agriculture, Farms, and Markets (AAFM), which oversees and regulates the state’s hemp program. The AAFM considers the possession, sale, and manufacture of synthetically-derived delta-8 products prohibited under state law and could be categorized as a controlled substance. Therefore, the possession, sale, and manufacturing of delta-8 products is likely punishable under state law. 

Virginia (VA)

Delta-8 is legal in Virginia. The state does not consider it a controlled substance under its Drug Control Act following House Bill 1839, which legalized hemp and hemp-derived compounds, separating them from marijuana and marijuana-derived compounds. Therefore, the use, possession, sale, distribution, purchase, and production of delta-8 products are legal under state law. Likewise, marijuana and marijuana-derived delta-8 are also legal in Virginia, meaning the use and possession of delta-8 derived from marijuana is not prohibited under state law. Learn more about the legal status of delta-8 in Virginia.

Washington (WA)

Delta-8 is not legal in Washington. The state classifies delta-8 as a Schedule I controlled substance under its Uniform Controlled Substances Act. Its illegality was further clarified by the Washington State Liquor and Cannabis Board (WSLCB), stating the production and manufacturing of delta-8 products requires a synthetic and chemical process, which goes against the state’s hemp laws. However, the rules surrounding the use and possession of delta-8 products are unclear.  

Washington DC

Delta-8 is likely legal in Washington DC. The federal Agriculture Improvement Act (Farm Bill) legalized hemp and hemp-derived compounds across the entire United States, including delta-8. Washington DC law follows the Farm Bill. 

West Virginia (WV)

Delta-8 is legal in Virginia and is not classed as a controlled substance under state law following the passage of House Bill 2694. The bill legalized hemp and hemp-derived compounds, including delta-8, meaning the use, possession, sale, distribution, and production of delta-8 products are permitted under state law without risk of penalty or prosecution. However, adult-use marijuana and marijuana-derived delta-8 is not legal under state law. Possession of any amount of marijuana-derived delta-8 is a misdemeanor punishable by anywhere between 90 days to 6 months imprisonment, alongside a maximum fine of $1,000. 

Wisconsin (WI)

Delta-8 is perfectly legal in Wisconsin. The state does not classify delta-8 derived from hemp plants carrying <0.3% THC as a controlled substance under its Uniform Controlled Substances Act, meaning the use, possession, sale, distribution, purchase, and production of delta-8 products are permitted under state law. However, marijuana and marijuana-derived delta-8 are not legal under state law. Possession of marijuana-derived delta-8 is a misdemeanor. First-time offenders can face up to 6 months in prison and a maximum fine of up to $500. Subsequent offenses carry harsher punishments, lengthier jail times, and significant fines entering into the tens of thousands of dollars. Learn more about the legal status of delta-8 in Wisconsin.

Wyoming (WY)

Delta-8 is fully legal in Wyoming. The state does not categorize hemp-derived delta-8 as a controlled substance following the passage of House Bill 0171, which legalized hemp and hemp-derived compounds, including delta-8. This bill ultimately means the use, possession, sale, distribution, purchase, and production of delta-8 products are legal under state law. However, marijuana and marijuana-derived delta-8 are not permitted within the state. Possession of marijuana-derived delta-8 is punishable under state law. 


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 categorize 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, Ph.D., 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…The correct path for the legal production and sale of delta-8 products is through a state-licensed adult recreational or medical marijuana operator. 

Marielle Weintraub, Ph.D., US Hemp Authority

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

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

New York has now become the most recent U.S. state to ban 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 prohibits 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.”

Updated: The New York Department of Health has officially banned delta-8 THC as of November 3, 2021, stating “prohibit the sale of Delta-8 THC products…these products contain intoxicating qualities which are better left to be regulated in the future Adult-Use program.”

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 continue to 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.