Is Delta 8 THC Legal?

Is Delta 8 THC Federally Legal?

Yes! However, this is only the case when it is extracted naturally from cannabis plants. Currently, CBD conversions are federally illegal following the DEA’s recent Interim Final Rule.

Generally federal law refers to the body of law created by the federal government of a country. In the US this consists of the US constitution, US treaties, federal statues and regulations, and federal common law. The federal law is the supreme law in the US and overrides state law whenever there is a conflict. 

However, there are still some complications related to breaking state law. This is particularly relevant to Delta 8 THC which is subject to an array of contradictory legislation nationwide.

Delta 9 THC has been heavily used and researched for the last century, yielding many negative connotations relating to the side effects. Delta 8 THC however is thought to produce vastly different effects, and actually have many medicinal properties. For this reason, it is legal in many states, in line with federal law. This was confirmed in the H.R. 2: The Agricultural Improvement Act of 2018, also known as the 2018 Farm Bill.

Also read... What is Delta 8 THC?

delta 8 legality in states

Agriculture Improvement Act of 2018

This bill legally allows all derivatives, isomers, and cannabinoids of hemp, provided the Delta 9 THC quantity is below 0.3. Unfortunately, this is rarely the case, particularly in chemical conversions of Delta 8 THC from Delta 9 THC. Hence why such forms of Delta 8 THC are currently federally illegal.

Whilst Delta 8 THC is specifically named in the Federal Analogue Act, part of the Controlled Substances Act, it is still legal. The 2018 Farm Bill in fact includes an amendment to the Controlled Substances Act. This amendment purposefully removes all tetrahydrocannabinols found in hemp.

This act defines ‘hemp’ as “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 delta9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis”.

In Which States is Delta 8 THC Legal?

Most states have legislation that aligns with federal law, meaning Delta 8 THC is legal. The following states allow the cannabinoid under state law:

Alabama, California, Connecticut, Florida, Georgia, Hawaii, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.

delta 8 thc legal

In Which States is Delta 8 THC Not Legal?

There are several states which have explicitly banned the use of Delta 8 THC, contradicting federal law. This is possibly due to the lack of research and understanding of the cannabinoid. The following states do not allow Delta 8 THC under state law:

Alaska, Arizona, Arkansas, Colorado, Delaware, Idaho, Iowa, Mississippi, Montana, and Utah.

Are there Any Grey Areas?

Yes, in Michigan there are conflicting state laws that create a grey area regarding the use of Delta 8 THC in the state. On the one hand, the hemp law specifically states that all cannabinoids, isomers, and derivatives of hemp are legal. On the other hand, Michigan’s controlled substances policies specifically identify that Delta 8 is illegal as both an isomer and a derivative.

Also, Nebraska state law casts a grey area over the legality of Delta 8 THC in the state. The Nebraska Hemp Farming Act (Legislative Bill 657) claims all hemp “derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers” are legal. They are not considered controlled substances. 

However, this is contradicted by the Uniform Controlled Substances Act Chapter 28 Section 28-405. This schedules “tetrahydrocannabinols naturally contained in a plant of the genus Cannabis” to be a schedule 1 drug. Despite this, the drug is likely legal in the state of Nebraska.

Rhode Island also has conflicting laws regarding the legality of Delta 8 THC in the state. Although the state legalized all derivatives, cannabinoids, and isomers of hemp there is still contradictory legislation. Another law defines Delta 8 THC as “THC” which is known to have hallucinogenic, recreational properties. This makes it illegal for consumption by humans. 

Even hemp-derived Delta 8 THC is not exempt from this law. Further clarification is needed but Delta 8 THC is likely not legal in Rhode Island.

The Bottom Line

As a general rule in the United States, all cannabinoids, isomers, and derivatives of hemp are legal according to the hemp law. This is conceded by individual state laws in 37 separate states and contradicted by laws in 10 states. There are also legislative grey areas regarding the use of Delta 8 THC in Michigan, Nebraska, and Rhode Island.

Whilst Delta 8 THC is federally legal, it is important to investigate legislation on the cannabinoid in the state in which you plan to use it. Please also take note of where you source your Delta 8 THC from. This is because the product is only legal if it is naturally derived and contains less than 0.3% Delta 9 THC.

Often it is cheaper and more efficient to produce Delta 8 THC via a chemical reaction from similar molecules such as CBD or Delta 9 THC. Primarily because it occurs naturally only in very small quantities and it is not always economically viable to extract it this way.

Please note that whilst this information is currently up to date, the laws are changing all the time. Therefore, it is important to consult a legal professional if you are considering the use of Delta 8 THC in the future. This will protect you against legislative action should your use of the cannabinoid fall into a legal grey area in your state.