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Hemp Delta-9 THC Is Under Threat: Where Is It Still Legal?

Hemp delta-9 is legal at the federal level thanks to the Farm Bill, but which states have brought in their own restrictions on the hot, not-so-new cannabinoid?

ByLee Johnson

Written by

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...

CBD Oracle's Editorial Process

Updated on

Written by

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 University. At CBD Oracle, he focuses on research-driven deep dives into topics ranging from medical uses for CBD to industry...

Hemp delta-9 THC gummies legally sold in United States

The 2018 Farm Bill had a lot of unintended consequences. While it successfully legalized low-THC hemp at the federal level, the broad wording of the definition of hemp let a lot of other products in under the radar.

The most notable consequence recently was delta-8 THC: since the Farm Bill specified a maximum delta-9 concentration, but that’s all, you could sell delta-8 THC at any concentration provided you kept the delta-9 under control.

States have started to close this loophole, but another has already opened up: you can sell delta-9 provided it’s less than 0.3% by dry weight, so what’s stopping companies from making a product that weighs enough to allow a substantial dose of THC despite this limit?

Well, unless states step in, the answer is nothing. However, as delta-8 has shown, states aren’t exactly hesitant to clarify or change the law when it’s needed. So has that happened with hemp delta-9? Where is it still legal?

The good news is that the answer is still “most places,” but the bad news is that it’s not everywhere, and the number of states allowing it is certain to continue to fall. 

Key Takeaways

  • 31 states and Puerto Rico allow hemp delta-9 THC
  • 11 states only allow hemp delta-9 THC if it was produced naturally, which many products are not
  • Alaska, Delaware, Idaho and Mississippi ban hemp delta-9 THC
  • 8 states have strict dosage limits for hemp delta-9 THC products

For a quick, at-a-glance look at the legality of hemp-derived delta-9 THC around the US, we’ve produced this state-by-state map. This will be updated regularly, so keep checking back if you want to find out more about your state.

Although the baseline law is the 2018 Farm Bill, which most states simply transcribe into their state laws, some states have taken different approaches. Generally, we can classify states’ hemp delta-9 laws as either keeping it legal, restricting it through regulation or outright banning it.

However, some laws that are technically “restrictions” effectively ban a large proportion of products, and we’ll put these in a separate section. There are also some states actively in the process of making laws.

Hemp delta-9 is legal in 31 states, plus Puerto Rico, with these states essentially following the Farm Bill when it comes to delta-9 and having no substantial legal challenges in progress. This means that it’s limited to being 0.3% delta-9 THC by dry weight, but that’s it.

States marked with an asterisk (*) have an age limit in place, usually allowing sales to adults aged 21 or over (unless noted). Louisiana has a dosage limit but it is sufficiently high that we do not consider this a meaningful restriction, unlike in states such as Virginia. 

States Where Hemp Delta-9 Is Restricted

Most states that allow hemp delta-9 THC do so without imposing restrictions other than (in rare cases) age limits. However, some states put more substantial restrictions on dosage that will impact most commercial hemp delta-8 THC products, or limit hemp products in other ways. These are listed here with details about the specific restrictions in parentheses. 

  • Colorado (1.75 mg serving, at least 15:1 CBD:THC; bans conversions of cannabinoids)
  • Connecticut (1 mg of any THC per serving, 5 mg per container, or only in state-licensed dispensaries)
  • Massachusetts (product types very limited, likely none allowed)
  • Oregon (2 mg serving limit; bans conversions of cannabinoids)
  • Utah (5 mg per serving; bans conversions of cannabinoids)
  • Virginia (2 mg per package or 25:1 CBD:THC)
  • Washington (dispensary only)
  • Washington DC (technically marijuana, but legal)

Substantial Regulations: States That Ban Conversions of Cannabinoids (Most Hemp Delta-9 Would Be Illegal)

While not many states have laws explicitly addressing hemp delta-9 (apart from re-stating the limit imposed by the Farm Bill), the push to get control over delta-8 has some additional consequences in many states.

Delta-8 products are generally made by converting CBD into delta-8 chemically, and some states have opted to ban this process rather than delta-8 specifically. However, our analysis of the hemp delta-9 market showed that almost two-thirds of hemp delta-9 products use extremely similar conversions that are also outlawed by regulations like this.

These states are:

States Where Hemp Delta-9 Is Banned

Hemp delta-9 THC is only banned in a handful of states, and in some cases it is sold openly anyway.

State-by-State Guide to Hemp Delta-9’s Legality

Alabama  

Hemp delta-9 is legal in Alabama. The state adopted the Farm Bill definition of “hemp” through Senate Bill (SB) 225, which legalizes hemp delta-9 THC at up to 0.3% by weight. In 2023, lawmakers passed SB 66 to limit sales and possession of intoxicating hemp products to adults aged 21 or over. 

Alaska

Hemp delta-9 THC is banned in Alaska. SB 6 used the Farm Bill’s definition of hemp, and also clarified that adding industrial hemp to food doesn’t make an “adulterated” food product. However, state hemp regulation 11-AAC-40.400(d) took effect on November 3rd, 2023, and this prevents hemp products containing any THC from being approved for sale. Marijuana is legal for adult use in Alaska, though.

It’s also worth noting that other THCs like delta-8, delta-10 and THC-O are considered controlled substances in the state.

Arizona

Hemp delta-9 THC is legal in Arizona. The state legalized industrial hemp based on the Farm Bill language with SB 1098, with the law including a clause that essentially permits hemp commerce in the state if it’s allowed at the federal level. This means that unless Arizona lawmakers pass another hemp bill, delta-9, delta-8 and other hemp cannabinoids remain legal in the state. 

Arkansas

Hemp delta-9 THC is legal in Arkansas. The state made industrial hemp legal in 2017, but the most up-to-date bill in the state is House Bill (HB) 1640 (Act 565), which defines hemp as a cannabis plant containing less than 0.3% delta-9 THC by dry weight. The state did pass Act 629, but a recent court decision prevents them from enforcing this, pushing the state back to the older bill until the issue is settled. Act 629 was primarily intended to tackle delta-8 THC and other novel cannabinoids, though, so in any case hemp delta-9 would have remained legal within some (not well-described) limits.

California

Hemp delta-9 is legal in California, but AB 45 clarifies a lot of state laws surrounding hemp products. Some important points established by the legislation include: making it so that adding industrial hemp to foods, beverages, dietary supplements and more doesn’t constitute “adulteration,” requiring a COA for any product sold, banning inhalable products until a tax structure can be implemented and applying the 0.3% THC by dry weight limit to any THC, effectively banning at least most delta-8 products on the market.

Additionally, AB 45 makes it clear that cannabinoids created artificially are not considered hemp. This means that any hemp delta-9 THC product sold in the state has to be produced naturally.

Colorado  

Hemp delta-9 THC is legal in Colorado provided it meets new dosage limitations. Colorado legalized hemp alongside other states with the passage of SB 19-220 in 2019. However, in May 2021, the Department of Public Health and Environment and the Marijuana Enforcement Division clarified that “chemically modifying or converting any naturally-occurring cannabinoids from industrial hemp is non-compliant with the statutory definition of ‘industrial hemp product.’”

This means that only plant-synthesized delta-9 THC is allowed in the state, and this outlaws many commercial hemp delta-9 THC products. Additionally, in 2023, Colorado passed SB 23-271, which establishes dosage limits for products sold as hemp. There are many details, but it essentially means that hemp delta-9 THC is permitted if there is less than 1.75 mg of THC per serving, no more than 5 servings per container, and the CBD:THC ratio is 15:1 or higher.

Connecticut

Hemp delta-9 THC products have to be sold in state-licensed dispensaries in Connecticut, unless they aren’t very potent. SB 893 legalized industrial hemp in Connecticut, with the same key definitions and requirements as the Farm Bill. However, SB 6699 passed in 2023 and created a new category of “high THC hemp product,” which are essentially sold as marijuana in the state. The cut-off for this category depends on the type of product, but for edibles, the limit is 1 mg of any THC per serving or 5 mg per container. 

This means that basically every commercial hemp delta-9 THC product has to be sold in a dispensary in Connecticut, and can only be sold to adults aged 21 or over.

Delaware

Hemp delta-9 THC is not legal in Delaware. Although the state has legalized marijuana (with sales expected to start in late 2024), Delaware hemp law (SB 266) is different from most other states, and doesn’t exempt the THCs in hemp from the controlled substances bill. This means that it isn’t legal to sell hemp products containing any THC in the state.

Florida

Hemp delta-9 THC is legal in Florida. SB 1020 defines hemp in the same way as the 2018 Farm Bill, and so explicitly allows delta-9 THC at up to 0.3% by dry weight. Additionally, SB 1676 makes it illegal to sell intoxicating products to anybody aged under 21. 

Georgia

Hemp delta-9 is legal in Georgia. The state passed HB 213 in 2019, which legalized industrial hemp in line with the Farm Bill, including allowing hemp delta-9 THC at up to 0.3% by dry weight. A county DA has argued that other THC isomers are not legal in the state, but delta-9 THC is explicitly included as “hemp” as part of its definition. 

Hawaii

Hemp delta-9 THC is legal in Hawaii provided it is produced naturally. In 2020, Hawaii passed HB 2689, legalizing hemp and hemp-derived compounds in line with the Farm Bill. However, administrative rules passed in February 2022 make it clear that any products produced through “isomerization” (a name for the process used to convert CBD to delta-8 or delta-9) are not permitted. This means only hemp delta-9 THC products that obtain the chemical naturally are allowed in the state.

It’s worth noting that there appears to be poor enforcement of these rules. 

Idaho

Idaho has some of the strictest hemp laws in the country, with the Idaho Uniform Controlled Substances Act, basically making it illegal for products to have any quantity of THC or its isomers. This makes it very difficult to sell hemp products in the state, and kills hemp delta-9 along with delta-8 and even most CBD products. Although outdated now, the opinion of the state Attorney General from 2015 really sums up the state’s attitude.

Illinois

Hemp delta-9 THC is legal in Illinois. State lawmakers signed the Industrial Hemp Act into law in 2018, which legalized industrial hemp with the same 0.3% delta-9 THC limit suggested by the Farm Bill. 

Indiana

Hemp is defined in Indiana law in line with the Farm Bill (under SB 516), so provided the delta-9 THC concentration is less than 0.3% by dry weight, the product is legal. The ongoing legal action in Indiana doesn’t really impact hemp delta-9 THC: everybody agrees that this is included as hemp. 

Iowa

Hemp delta-9 THC is legal in Iowa, provided the product is not for inhalation and all THCs combined are under 0.3% by dry weight. The Iowa Hemp Act uses the same definition for “hemp” as federal law, but requires that hemp products contain less than 0.3% of all THCs combined. This is a problem for delta-8 THC products, for instance, but generally does not impact hemp delta-9 ones. 

Kansas

Hemp delta-9 THC is legal in Kansas, under the provisions of HB 2167. This bill uses the older, 2014 Farm Bill definition of “hemp,” but still permits delta-9 THC at a concentration of up to 0.3% by dry weight. This means that hemp delta-9 THC products are legal in Kansas, but the bill includes all THC isomers in its 0.3% limit, so most delta-8 THC products are not allowed 

Kentucky

Kentucky legalized hemp delta-9 THC with the passage of HB 197, which essentially replicated the 2018 Farm Bill language in state law. While there was a dispute over the status of delta-8 THC, the legality of delta-9 THC was never in question. The state has banned sales of THC products to anybody aged under 21. 

Louisiana

Hemp delta-9 THC is legal to sell in Louisiana, but only to adults aged 21 or over. HB 758 created a category of “adult-use consumable hemp products,” which are defined as containing more than 0.5 mg of THC per package, and includes every commercial hemp delta-9 THC product. The bill establishes a dosage limit of 8 mg per serving and makes it illegal to sell them to anybody aged under 21, but still allows them to be sold. 

Maine

LD 630 defines industrial hemp in line with the Farm Bill, and so hemp-derived delta-9 is legal in Maine.

Maryland

Hemp delta-9 THC is legal in Maryland after a court prevented the state from enforcing HB 556. With this bill (at least) temporarily prevented from taking effect because it was deemed to create a monopoly for the marijuana industry, HB 1123 provides the most up-to-date rules on hemp in Maryland. Under this bill, hemp delta-9 THC is legal. The state created some age limits for hemp in SB 788, but these don’t appear to apply to delta-9 THC, just delta-8 and delta-10. 

Massachusetts

Hemp delta-9 THC products cannot be sold legally in Massachusetts. While the state’s definition of hemp matches the 2018 Farm Bill definition, and so delta-9 THC is permitted up to 0.3% by dry weight, there are other restrictions. In particular, the Department of Agricultural Resources keeps a list of types of hemp products approved for sale, and these do not include cannabinoid-containing edibles, vapes or hemp flower, or basically any form hemp delta-9 products are found in. Theoretically, hemp delta-9 is legal in the state, but practically it is not allowed. 

Michigan

Hemp delta-9 THC is legal in Michigan. HB 4744 officially legalized industrial hemp in Michigan, with the same definitions as used in the Farm Bill. However, HB 4517 essentially made delta-8 illegal by defining THC to include all THCs combined. This means that most products with alternative THCs are not legal in the state, with hemp delta-9 being one of the only remaining legal options.

Minnesota

Hemp delta-9 THC is legal in Minnesota. State law (the Industrial Hemp Development Act) defines industrial hemp in the same way as the Farm Bill, but this was clarified by HF 4065. This bill changes the 0.3% limit to apply to all THCs, and makes it so any hemp cannabinoid product (including hemp delta-9) can only be sold to adults aged 21 or over. 

Mississippi

Hemp delta-9 THC products aren’t legal to sell in Mississippi. SB 2725 legalized hemp in Mississippi based on the 2018 Farm Bill. However, while the state removed hemp from the controlled substances bill’s listing for marijuana and THC, it specifies that products intended for human consumption are removed if they’re approved by the FDA. This means that technically no hemp products are legal in Mississippi. Despite this, hemp products are sold openly in Mississippi and it’s unclear whether anybody in a position of power actually interprets the law in this way. 

Missouri

In 2018, Missouri’s HB 2034 legalized industrial hemp using the definitions in the Farm Bill, and so hemp delta-9 is legal in the state.  

Montana

Montana legalized industrial hemp back in 2001 with SB 261, which came well before the Farm Bill but used the same definitions and limits. However, in 2023 the state passed HB 948, which makes it illegal to sell cannabinoids produced artificially (confusingly called “synthetic cannabinoids”) and applies the 0.3% THC limit to all THCs combined. This means that hemp delta-9 THC products are legal provided that the THC is produced naturally and all THCs combined are below 0.3%. Otherwise, they would have to be sold in the regulated marijuana industry. 

Nebraska

LB 657 legalized industrial hemp in Nebraska, and was signed into law in 2019 so it follows all of the same definitions and limits as the 2018 Farm Bill. Because of this, hemp delta-9 is legal in Nebraska.

Nevada

Hemp delta-9 THC is legal in Nevada. The definition of hemp in Nevada (originally from SB 305) imposes the 0.3% THC limit from the Farm Bill. However, this limit also includes THC’s isomers, with 2021’s SB 49 explicitly mentioning delta-7, delta-8 and delta-10, and they are also covered by the state’s Uniform Controlled Substances Act. It also defines “synthetic cannabinoids” to include anything produced artificially, so hemp delta-9 THC is legal in Nevada provided it is produced naturally and doesn’t contain more than 0.3% of any THCs by dry weight. 

New Hampshire

Hemp delta-9 THC is legal in New Hampshire. HB 459 was signed into law in 2019, and defines hemp in line with the Farm Bill, and this was clarified by HB 611 so the 0.3% limit applies to all THCs combined. The result is that hemp delta-9 THC products are the only type that usually abide by New Hampshire law. 

New Jersey

Hemp is legal in New Jersey following the Hemp Farming Act and is defined in the same way as in the Farm Bill. So hemp delta-9 is legal provided it meets the 0.3% delta-9 by dry weight limit. A bill being considered at the time of writing (November 2023) would add a 0.3% limit for delta-8 too, but wouldn’t affect hemp delta-9. 

New Mexico

New Mexico legalized hemp in line with the Farm Bill with the Hemp Manufacturing Act, so hemp delta-9 is legal in the state within the usual limit.

New York

Natural hemp delta-9 THC is legal in New York. The state’s major industrial hemp legislation came in March 2020, using the same definitions as the Farm Bill and so allowing hemp delta-9 by default. However, in November 2021, the state clarified through regulations that cannabinoids created through “isomerization” (the process used to make delta-8 THC and some delta-9 products from CBD) are not permitted in the state’s hemp program. In short, hemp delta-9 THC is legal provided it is naturally produced. 

North Carolina

Hemp delta-9 THC is legal in North Carolina, following the passage of S455 in 2022. This bill legalized hemp cannabinoids up to a limit of 0.3% delta-9 THC, as in the federal Farm Bill. It used the usual definition of hemp and exempted hemp products from the relevant parts of the state’s controlled substances list. 

North Dakota

Hemp delta-9 is technically legal in North Dakota. However, amendments to the original hemp law explicitly include all THCs in the 0.3% limit, and also ban the conversions used to make delta-8 and most delta-9 products from CBD. It’s possible, even with this, to have legal hemp delta-9 in North Dakota, but it makes it much more difficult. 

Ohio

Ohio’s SB 57 legalized hemp in Ohio, and used the Farm Bill’s definition, so hemp delta-9 is legal. Other THCs in hemp are also legal in Ohio.

Oklahoma

HB 2913 established a pilot program for hemp in Oklahoma, and a year later SB 868 made it permanent. This followed the language of the 2018 Farm Bill and exempted hemp from the controlled substances bill, and so hemp delta-9, delta-8 and others are all legal in Oklahoma.

Oregon

Hemp delta-9 is legal in Oregon but HB 3000 brought in more complex rules surrounding hemp, basically intended to rectify situations around intoxicating hemp products. This redefined “adult use cannabis item” to include hemp-derived cannabinoids if they exceed a threshold, which is currently set at 2 mg of THC per serving and 20 mg per container. Beyond this level, hemp delta-9 is still allowed, but is regulated by the Oregon Liquor and Cannabis Commission (OLCC). 

Additionally, the delta-9 THC cannot be artificially derived, which excludes many products currently on the market.

Pennsylvania

Hemp delta-9 is likely legal in Pennsylvania, but there are some issues interpreting state law. PA’s hemp law was passed in 2016, but this focused on its use for research, and the Department of Agriculture regulates hemp under the authorities of the Controlled Plants and Noxious Weeds Act. The hemp rules it established include the usual 0.3% THC limit that allows hemp delta-9 products, but the state’s controlled substances list makes no exemption for hemp. 

This makes the situation in Pennsylvania confusing. People argue that delta-8 is not legal because of this issue, but don’t make this point for hemp delta-9, even though the problem is ultimately the same. Police have seized delta-8 and delta-10 products but left hemp delta-9 ones alone, and there is an ongoing lawsuit about this. In short, it seems hemp delta-9 is de facto legal in Pennsylvania, but it’s not clear whether this is true in the letter of the law. 

Puerto Rico

Puerto Rico’s hemp program uses the Farm Bill’s definitions and limits, so hemp delta-9 is totally legal there.

Rhode Island

Hemp delta-9 THC is likely legal in Rhode Island. The state’s Hemp Growth Act uses the Farm Bill’s definition of hemp, legalizing any cannabis plant with less than 0.3% delta-9 THC by dry weight, along with all derivatives, extracts and cannabinoids. However, although hemp is exempted from the definition of marijuana, there is no exemption from the definition of THC. This means that delta-8 THC and other isomers are not legal in the state, but leaves the position of hemp delta-9 a little unclear. 

It’s likely that since delta-9 is mentioned by name in the definition of hemp, which was legalized by the Hemp Growth Act, this constitutes a “specific exception” to the controlled substances listing for THC too. 

South Carolina

Hemp delta-9 THC is legal in South Carolina. The state’s hemp law uses the federally defined limit for THC in hemp and the Farm Bill’s language, so hemp delta-9 is legal in the state. However, Attorney General Alan Wilson issued an opinion on the state’s hemp law, which essentially argues that only delta-9 THC at up to 0.3% by dry weight is exempt from the state’s controlled substances bill. This would mean delta-8 THC and other isomers are illegal, but if anything explicitly agrees that hemp delta-9 THC is legal. 

South Dakota

HB 1008 was signed into law in 2020 in South Dakota and follows the Farm Bill’s language. So hemp delta-9 is legal, alongside delta-8 and other isomers, despite the state’s generally firm stance on pot. HB 1292 established a minimum age of 21 for purchase of delta-8 THC, THC-O and HHC, but this doesn’t mention hemp delta-9 THC. 

Tennessee

Hemp delta-9 THC is legal for adults in Tennessee, provided it meets the requirements established by SB 378. This bill makes it illegal to sell hemp delta-9 or any “hemp derived cannabinoid” to anyone aged under 21 and establishes rules for lab testing and packaging. Hemp delta-9 is legal but regulated in the state. 

Texas

Texas’ HB 1325 defines hemp in the same way as the Farm Bill, and so hemp delta-9 is legal in the state provided the products meet the 0.3% delta-9 limit. There was a high-profile attempt to ban delta-8 in Texas, though, so it’s worth keeping an eye out for changes.

Utah

Hemp delta-9 THC is legal in Utah provided it is produced naturally and has no more than 5 mg of any THC per serving or 150 mg per package, in line with HB 227. HB 227 clarified the rules around industrial hemp in Utah, with the aim of limiting delta-8 THC and similar products by making the 0.3% THC limit apply to all isomers and preventing artificially derived products. This means that only naturally-extracted hemp delta-9 THC is legal hemp in the state. 

Vermont

Vermont uses Farm Bill limits in its state hemp law, so hemp delta-9 is legal in the state. However, delta-8 is considered illegal in the state because the conversions necessary to produce high levels mean it is considered “synthetic.” Many hemp delta-9 products use these same conversions, so these products are also banned in the state. Only natural hemp delta-9 THC is legal in Vermont.

Virginia

Most commercial hemp delta-9 THC products are not legal in Virginia, but it is technically legal provided they meet certain limits. SB 903 limits hemp products to either contain no more than 2 mg of total THC per package or to contain 25 times more CBD than it does THC. This means that the majority of commercial hemp delta-9 products are not legal in the state.

Washington

Any hemp delta-9 THC product would have to be sold as marijuana in Washington, following the passage of SB 5367 in 2023. While the state maintains the same definition of “hemp” as the federal government, a product “with any detectable amount of THC” is considered to be a cannabis product in the state. This means it can only be purchased by adults aged 21 or over in a state-licensed dispensary. 

West Virginia

Hemp delta-9 THC is legal in West Virginia provided it was produced naturally. The state passed SB 220 in 2023, which retains the 0.3% limit for delta-9 THC in hemp, but explicitly outlaws synthetically produced cannabinoids like delta-8 THC. Many hemp delta-9 THC products are produced in this same synthetic way, and so are also illegal in West Virginia. For naturally-produced hemp delta-9 THC products, the bill limits their sale to adults aged 21 or over.

Wisconsin

Hemp delta-9 THC is legal in Wisconsin. According to Wisconsin Stat. 94.55, hemp is defined in line with the Farm Bill, with a limit of 0.3% by dry weight for delta-9 THC. Up to this limit, delta-9 THC is legal as hemp. The Wisconsin Legislative Council argues that synthetically-produced delta-8 THC is illegal, and this argument would carry over to synthetically-produced delta-9 too, but this is an opinion and this distinction is arguably not present in the actual state law. 

Wyoming

Wyoming’s HB 171 legalized industrial hemp using the language of the Farm Bill, so hemp delta-9, delta-8 and other cannabinoids in hemp products are legal provided they meet the 0.3% delta-9 limit. 2023’s HB 108 limits hemp delta-9 THC edible or vape sales to people aged 18 or over. 

Washington D.C.

Washington D.C. doesn’t have a hemp law, but marijuana is legal for adults aged 21 or over in the district. Hemp delta-9 THC would likely be considered marijuana in D.C., so you would not get in trouble for possessing it. Additionally, there is a “gray market” operating in the district, and even without legal hemp sales, hemp products are still openly sold. 

What Is Hemp Delta-9?

Farm Bill compliant CBD gummies with THC
Hemp delta-9 products are often advertised as “CBD + THC” or “Delta-9” and contain anywhere between 1-50mg THC per serving. Photo: CBD Oracle

Hemp delta-9 is simply delta-9 THC that comes from hemp rather than cannabis. To be more specific, this means it’s delta-9 THC that comes from a plant containing less than 0.3% delta-9 THC by dry weight.

Likewise, products containing hemp delta-9 also have to have a concentration of less than 0.3% THC by dry weight to class as “hemp.”

RELATED: What Is Hemp Delta-9 THC? Everything You Need to Know

Hemp Delta-9 vs. Cannabis Delta-9: Is There Any Difference?

In purely chemical terms, hemp delta-9 THC is exactly the same as the THC in cannabis that gets you high. That means, if you have enough of it, it will get you high in exactly the same way and would cause you to fail a drug test for THC.

However, in practice, the limit on concentration means that the specific cannabinoid mix is generally different in hemp delta-9 and cannabis delta-9 products. In particular, hemp delta-9 products are likely to contain much higher levels of CBD than cannabis-derived delta-9 products.

How Is Hemp Delta-9 Farm Bill Complaint?

The Farm Bill legalized industrial hemp, and explicitly states that:

The term ‘hemp’ means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.

While there are many discussions surrounding the intent of this law, generally concluding that legalizing intoxicating products was never the intent (lawmakers were told it was about “rope, not dope”), the plain text of the law is unavoidably clear. The law basically removes delta-9 THC from the Controlled Substances Act provided it is within the stated concentration. This interpretation has been explicitly confirmed by the DEA.  

One important point that is often missed is the “dry weight basis.” This means that for any extract or product, the water weight must be subtracted before calculating the percentage. So for a delta-9 gummy, for instance, the water from the oils and other ingredients of the gummy don’t count towards the total weight – it has to be removed from the calculation.

The FD&C Act and Further Problems for Hemp Delta-9

Delta-9 THC gummies product at a vape store
Hemp delta-9 gummies can contain high levels of THC per serving but remain below 0.3% THC by dry weight. Photo: CBD Oracle

While hemp delta-9 is legal under the Farm Bill, the Food, Drug & Cosmetics Act creates some additional problems for hemp delta-9 and other hemp cannabinoids like CBD.

According to the FDA’s interpretation of the law, adding either THC or CBD to food products violates the FD&C act, because both are active ingredients in approved drugs, Marinol and Epidiolex, respectively. They have also sent out warning letters to CBD companies with this as one of the complaints.

Thus far, there have been no warning letters for hemp delta-9 companies, but there will undoubtedly be some soon. The “no approved drugs in food” issue would apply to delta-9 but not delta-8 (because this form is not used in an approved drug), but there is still an FD&C argument against delta-8, as shown by other warning letters. They consider delta-8 an “unsafe food additive” because it has not been approved for the purpose by the FDA.

So even if delta-9 could escape the drug argument, it would likely still be considered illegal when sold in food.

How Old Do You Have to Be to Purchase Hemp Delta-9 Products?

The Farm Bill doesn’t institute age restrictions on buying hemp products, but states generally do.

However, the specific laws vary by state, with most instituting a minimum age of 21, but others opting for a minimum of 18. It’s very likely, as states catch up with intoxicating hemp products and actually institute laws, that hemp delta-9 will only be available to those aged 21 or older.  

Could You Get Arrested If Caught in Possession of Hemp Delta-9?

You couldn’t be justifiably arrested for having hemp delta-9 in your possession, unless it has been explicitly outlawed by the state. This is because the Farm Bill legalized it, and any FD&C Act considerations are relevant to sellers, not consumers. However, for states with bans on hemp delta-9, you could of course be arrested for having it in your possession.

Note that I said “justifiably” above. While it seems pretty unlikely this would actually occur, it’s possible that some police officers might not fully understand the law (especially the unintuitive consequences of it) and believe that you’re in possession of a controlled substance. They would be wrong, though, so it’s important to know your rights just in case.

In short, you couldn’t get arrested unless you’re subject to a state-specific law or unless you’re dealing with a clueless cop.

The Future of Hemp Delta-9

Hemp delta-9’s days are probably numbered. The reality of the situation is that legislators never intended for this type of product to come from the Farm Bill, and while they may struggle to get the lid back on this Pandora’s Box, they will get it back on.

All it would take to kill the industry would be a small change to the Farm Bill, such as “with any final product containing less than 2 mg of total THC per serving.” Just half a sentence would kill the industry.

Hemp cultivation plant indoor

This is already happening in several states. For example, Virginia’s law limits any THC at 2 mg unless there is a 25:1 CBD:THC ratio. At the moment, most states and lawmakers are primarily concerned with delta-8 and other THC isomers, and closing that loophole (such as AB-45 in California, which applies the 0.3% limit to all tetrahydrocannabinols), but things will progress very shortly.

RELATED: The Future of Hemp Industry in 2023 and Beyond

Perhaps surprisingly, it’s legal states like Colorado and California that will come down most quickly – and harshly – on hemp delta-9. In legal states, companies can sell high-THC products provided they meet the requirements of the adult use law, which are generally much stricter than the (very basic) requirements of the Farm Bill. This creates a double-standard, which drastically increases pressure on lawmakers to rectify the situation.

It’s likely that more states will take action against hemp delta-9 in the coming year, especially after the update to the Farm Bill has been delayed for another year. This leaves the problem in states’ hands until September 2024, and many are eager to take action. Hemp delta-9 is borne of a loophole, and it will die as the loophole closes.

In a sane world, the proliferation of intoxicating hemp products amid a backdrop of rising support for complete marijuana legalization would be a sign that prohibition is on the chopping block. Who would buy hemp delta-9 if you could just as easily buy normal delta-9? What would be the point? But we do not live in a sane world. Instead, we can expect states to close this little loophole soon, undoubtedly followed by another technically-legal-but-obviously-not-intended hemp product or two, and then the cycle will continue.

Someday soon, politicians will legalize cannabis and remove one target from the costly, counterproductive and ineffective war on drugs, but that day isn’t today. So get ready for another round of whack-a-mole.

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

Our Research Methodology

In our research for this list, we read through all relevant state laws that had either been passed or were still pending at the time of writing, as well as the 2018 Farm Bill itself. 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-9 THC? E.g. is it illegal to sell products created through isomerization?
  6. Is delta-9 THC practically available in the state? In some cases the letter of the law doesn’t match up to the reality on the ground, so we also looked at whether hemp delta-9 is actually available to buy in the state, legally or not.
  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. For this and our piece on delta-8 THC’s legality, we worked with Neil Willner, co-chair of the Cannabis Group at Royer Cooper Cohen Braunfeld, to analyze the state laws. Based on the feedback and suggestions, we re-checked laws and re-worked content until we agreed on an interpretation for each state’s bills. The focus of this process was delta-8, but the same laws and interpretations also apply to hemp delta-9. 

The post will be continuously updated and reviewed as the situation changes. While this should ensure 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: This article was updated on December 1, 2023, to include the most recent policy changes in various states.

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