Is Delta-8 THC Legal? [State-By-State]

Delta-8 Legal States

If you’ve used cannabis plants in any form at any point in your life – be it dry herbs or CBD tinctures – you must have heard of the latest hype over D-8 THC extracts.

Delta-8 THC is the milder, more docile sister of Delta-9 THC and a more therapeutic cannabinoid than CBD. It offers all the goodness of these two cannabinoids, coupled with a mild high – JUST enough to help you relax, unwind, and nicely buzzed – but NOT enough to get stoned!

Technically, cannabis’ main psychotropic cannabinoid D-9 THC is a Controlled Substance, as per the Controlled Substances Act (CSA) of 1970. Unfortunately, D-8’s closeness to D-9 THC makes it difficult for consumers to be sure of its legal status. It’s confusing, to say the least!

All this confusion stems from the fact that cannabis is, broadly, of two types – hemp, which is legal, and marijuana, which is NOT legal. The latter is illegal due to its high Delta-9 THC content.

In other words, any hemp extract is legal under federal law.

So, what about the D-9 THC products available everywhere nowadays? Is that legal?

The Short Answer: Yes. Hemp-derived D-8 THC products, containing less than 0.3% D-9 THC is legal in all 50 states of the USA.

But what if the extract contains more than 0.3% Delta-9 THC?

Then, it is illegal.

Confused already? Well, here is the longer answer…

What’s Delta-8 THC? What Makes It Different From Delta-9 THC?

To start this discussion, we must first understand what makes THC (irrespective of the isomer) so vulnerable to legal regulations.

THC is psychoactive, having some unique mood-altering properties.

But these properties are what make this type of cannabinoid so desirable so many.

But the side effects of some of these isomers, especially Delta-9 THC, can be quite erratic and can negatively impact a user. Again, people with a certain genetic predisposition for violence or other mental issues, like schizophrenia, could develop these conditions sooner under the highly psychotropic effects of Delta-9 THC.

The discovery and presence of Delta-8 THC in cannabis plants are what helped the industry strike the balance. With Delta-8 THC, you can get a bit high, but without the drastic and adverse risks that Delta-9 THC poses.

So, if the Delta-8 THC is extracted from natural hemp, the effects will be milder than marijuana-extracted Delta-8 THC.

Note, that the disheartening regulations surrounding THC are basically around Delta-9 THC, and not Delta-8 THC, as its effects aren’t as strong or adverse as the former. Delta-8 THC doesn’t cause strong mood-altering or psychotic effects; it does not cause paranoia, anxiety, or depression.

Are the two compounds physically different?

Delta-8 THC is an isomer of Delta-9 THC. Its molecular structure is similar to delta-9 THC, but with different C-bonding properties.

Each is a chemical analog of the other.

So, regardless of the differences in their carbon bonding, they both have similar psychoactive effects, besides their shared antiemetic, anxiolytic, appetite-stimulating, analgesic, and neuroprotective properties.

However, that slight difference in the position of the C=C double-bond in their molecular structures makes their effects so much different.

The “Delta” in their name signifies the double-bond between two carbon atoms and the numerical tells you the position of that double bond.

How far do their effects differ?

Just like Delta-9 THC, Delta-8 THC, too, has a set of good and (somewhat) undesirable effects on individuals consuming them.

While D-8 shares some of D-9’s positive effects, such as muscle-relaxing, antiemetic, appetite-stimulating, analgesic, and neuroprotective properties, it doesn’t have the same negative impact, such as anxiety, paranoia, or hallucination. It neither causes paranoia or anxiety.

That is why it is so much preferred over other cannabinoids to get the best of both worlds – to get high while staying grounded, and perhaps a bit of help with some physiological issues.

Nevertheless, be vigilant against any undesirable effects that you may notice. Reach out to a medical practitioner as soon as you experience any sudden rise in heart rate, drowsiness, problems concentrating, or extreme anxiety. These could indicate you’re experiencing some side effects.

Although these are rare, very mild side-effects, and usually only noticed among animals, there is still a chance that humans could also experience them.

That brings us to the most crucial question. Does Delta-8 THC that shares so many properties with Delta-9 THC, be considered legal? Or will I get into trouble with the law for consuming or possessing any product containing this cannabis compound as well?  

The BIG Question: Is Delta-8 THC Legal?

The legal status of Delta-8 THC is undeniably a bit complicated and, let’s face it, it’s confusing.

However, it’s quite simple if you bear in mind that THC can be either legal or illegal depending on the intensity of its psychotropic effects.

Since the government can’t possibly check every batch of every product made by every brand to see how psychotropic they are, the authorities have made the law somewhat simpler for everyone to follow without defying it.

With the introduction of the 2018 Farm Bill, all hemp-derived products are legal. According to the law, as long as Delta-8 THC is extracted from natural hemp, which contains less than 0.3% Delta-9 THC, it is legal.

While some will call it a loophole, others call it the right opportunity to make the most of both worlds – CBD and THC.

Recent DEA Ruling & Panic

A few months back, as recently as August 2020, the Drug Enforcement Administration (DEA) came out with its revised rule involving the scheduling of hemp and marijuana.

With this ruling, the cannabis community in the country was swift to assume that this would outlaw Delta-8 THC – and panic spread. Farmers and manufacturers who had so far led a legitimate business feared getting on the wrong side of the law – overnight.

Yes, overnight, because the rule was put into action with immediate effect!

Besides, if Delta-8 THC does become a Schedule-I controlled substance, the fear of felonious criminal prosecution would discourage people from buying any product containing this cannabinoid.

However, all that fear isn’t rightly placed. As a consumer, you should have all the facts right.

And the fact is that the DEA merely codified what was already stated plainly in the 2018 Farm Bill. This new Interim Final Rule (IFR) DOES NOT forbid the extraction of any cannabinoids from hemp, neither does it make hemp-derived Delta-8 THC products unlawful.

What this new rule did was to modify the definitions of certain terms, including marijuana and tetrahydrocannabinol.

According to the new rule:

‘The AIA [best known as the Farm Bill] does not impact the control status of synthetically derived tetrahydrocannabinol (for Controlled Substance Code Number 7370) because the statutory definition of “hemp” is limited to materials that are derived from the plant Cannabis sativa L. For synthetically derived tetrahydrocannabinol, the concentration of delta-9 THC is not a determining factor in whether the material is a controlled substance. All synthetically derived tetrahydrocannabinol remain Schedule I controlled substances.’

Although the DEA does seem to put Delta-8 THC under “Controlled Substances” (“tetrahydrocannabinol”), the 2018 Farm Bill, in its definition of “tetrahydrocannabinol in hemp” [in Section 12619(b) of the 2018 Farm Bill], clearly states that any type of THC that is naturally extracted from a cannabis plant containing less than 0.3% Delta-9 THC is legal (at the federal level).

So, to break down the IFR here’s what you need to know:

  • Naturally occurring THCs in cannabis are not controlled substances so long as they’re accompanied by no more than 0.3% Delta-9 THC.
  • Any cannabinoid product containing over the 0.3% threshold of Delta-9 THC is a controlled substance.
  • All synthetically derived THCs have controlled substances, no matter what their Delta-9 THC content may be.

Apart from its rule on Delta-8, the DEA has also something very crucial to say about Work in Progress Hemp Extract or WIPHE. WIPHE is a partially processed state of hemp that isn’t intended for human consumption.

WIPHE & The Question Mark

The DEA has also outlawed WIPHE, as it contains above 0.3% cut-off mark of Delta-9 THC.

This doesn’t withstand the fact that most hemp-derived products that are legal are actually derived from this substance.

WIPHE is an essential component in the production of CBD, Delta-8 THC, and more or less all hemp products that are legal to produce and consume. So, according to the Administration, this means that even though the end-products are legal, the process of manufacturing them may be unlawful.

‘…the definition of hemp does not automatically exempt any product derived from a hemp plant, regardless of the 9-THC content of the derivative (read end-product)…to meet the definition of “hemp,” and thus qualify for the exemption from schedule I, the derivative must (also) not exceed the 0.3% 9-THC limit…”

This is a problem because despite being a hemp derivative, WIPHE exceeds the 0.3% cut-off limit, thereby making it a Schedule 1 substance, which can’t be used, even if the plant from which it’s derived contains within established limits of D-9 THC.

The “Cloud” Around Synthetic D-8 THC

The law states that any kind of synthetic Delta-8 THC or Delta-8 derived from marijuana are obviously illegal, as they would either contain high levels of Delta-9 THC or have other artificial chemicals that could prove inappropriate for humans consumption.

Delta-8 THC can be synthetically produced using nothing more than raw chemicals or by treating other cannabinoids, like Delta-9 THC or CBD. In both types of synthetic production, Delta-8 is rendered illegal.

Sometimes, however, synthetic Delta-8 is unavoidable, as obtaining natural Delta-8 THC from hemp isn’t exactly easy or simple. This compound, which is one of the 100-odd minor cannabinoids found in hemp, is available only in minute traces in the natural form.

To avoid legal hassles, many companies manufacture Delta-8 THC products by synthetically converting CBD into Delta-8. They choose CBD, and not Delta-9 THC, to avoid the legal hassles. However, despite being a cheaper and more stable option, this is still unlawful as per the DEA.

Unfortunately, there’s no way for the authorities to verify whether companies extract Delta-8 THC directly from hemp or synthetically produce it from other cannabinoids. That has been the bone of contention between the Hemp Industries Association and the Drug Enforcement Administration for several years now.

Most of the products you buy from unreliable sources possess high levels of Delta-9 THC. This would mean that they are illegal and can get you very high! Choose to buy Delta-8 THC products from reliable sources and reputable brands like Exhale Wellness and Budpop.

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Only that will ensure you’ve got the good stuff!

So, if you’re looking to buy Delta-8 we recommend you check out these amazing guides for Delta-8 vape carts or Delta-8 THC tinctures.

State-By-State Legal Status

Although Delta-8 is federally legal, a few states explicitly ban its use. It won’t matter that the companies obtain the compound from natural hemp.

Delta-8 THC remains legally out of bounds in Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Idaho, Iowa, Kentucky, Michigan (comes into effect October 2021), Mississippi, Montana, New York, North Dakota, Rhode Island, Utah, Vermont, and Washington (except DC).

New York recently banned the compound when the language of the regulations concerned changed, restricting its use or sale in the state.  The new rule reads: “Section 1005.7 Requirements for Cannabinoid Hemp Processors (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”.

Legislative bans and regulatory clarifications are currently being considered in other states, including Alabama, Illinois, Oklahoma, and Oregon.

Earlier, some interpretations of the Texas House Bill 3948 suggested that Delta-8 and other THC isomers that are synthetically derived from other natural cannabis compounds would soon become illegal.

However, the state’s legislative session that ended on May 31 has left these isomers “unregulated” in the state for now. So, if you’re a resident of Texas, you can still enjoy the Delta-8 buzz.

As of now, Delta-8 is legally available in 28 states and a district. They are California, Florida, Georgia, Indiana, Kansas, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Hampshire, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Virginia, West Virginia, Wisconsin, Wyoming, Hawaii, and Washington DC.

Our Takeaway

If you’re concerned about the legal status of delta-8 THC, always buy from reputable manufacturers and retailers, who obtain their products from ethical, legal, safe, and sustainable sources. Some certified dispensaries can also be relied on to provide you with authentic, safe, and lab-tested products.

Although D-8 is legal at the federal level, 11 state laws do not allow its sale and/or use. It is deemed illegal in Alaska, Arizona, Arkansas, Colorado, Delaware, Idaho, Iowa, Mississippi, Montana, Rhode Island, and Utah.

So, if you reside in any of these states, you have only two choices: Move, or don’t consume D-8.

It’s safe to say that you can easily utilize the benefits of Delta-8, without experiencing the ill effects of delta-9 THC, as long as you reside in a state that doesn’t explicitly bar its citizens from gaining access to safe, potent, and lab-tested Delta-8.

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