The Legal Status of Delta-8 in the United States

While laws in the United States have been trending towards the complete legalization of cannabis, there are caveats, and one of those caveats is delta-8 THC, which is found in the Cannibas Sativa plant. While the amount of delta-8 found in any given plant is insignificant, higher concentrations can be manufactured.


Delta-8 has not been evaluated or approved by the FDA, which means its legal status on a federal level is unclear. It’s currently in a gray area, as the 2018 Farm Bill legalized all hemp, changing it from a controlled substance to an agricultural product. However, the Drug Enforcement Agency still regards delta-8 as a controlled substance.


Meanwhile, the US Hemp Authority no longer certifies products that contain delta-8 and they’ve advised companies to stop producing the compound altogether.


If this leaves you wondering whether or not consuming delta-8 is legal or illegal, you’re not alone. The situation is confusing at every level and all we can do right now is look at what’s happening on a state level.


Where Can I Acquire and Consume Delta-8?


To start with, let’s list the states that haven’t imposed any sort of restrictions or bans on delta-8. Fortunately, this is the majority of states in the US.


● California

● Florida

● Georgia

● Hawaii

● Indiana

● Kansas

● Louisiana

● Maryland

● Maine

● Massachusetts

● Minnesota

● Missouri

● New Hampshire

● New Mexico

● Nevada

● Nebraska

● North Carolina

● New Jersey

● Ohio

● Pennsylvania

● South Dakota

● South Carolina

● Texas

● Tennessee

● Virginia

● West Virginia

● Wisconsin

● Wyoming


In addition to the 28 states listed above, Washington D.C. has not banned delta-8, either.


These are the states that have banned all sales of delta-8 products.


● Alaska

● Arizona

● Arkansas

● Colorado

● Connecticut

● Delaware

● Kentucky

● Idaho

● Iowa

● Mississippi

● Montana

● New York

● North Dakota

● Rhode Island

● Utah

● Vermont

● Washington


The states above have banned delta-8 for a variety of reasons. In some states, recreational use of any sort of THC is still illegal. In others, delta-9 is legal, but not delta-8, due to it having to be synthesized. Other states are simply following the example set by the DEA and treating it as a controlled substance.


The legality of possession is mixed, too. In some states, it’s only illegal to sell it and manufacture it. Other, stricter states, are cracking down on possession as well. In those states, however, it’s up in the air as to whether the police would actually enforce the law.


Finally, these states are currently reviewing the legal status of delta-8.


● Alabama

● Illinois

● Oklahoma

● Oregon


A bill recently proposed in Texas sought to ban delta-8 products, but the bill died in the legislature, so delta-8 is still legal there.


Michigan Governor Gretchen Whitmer recently signed bills to regulate delta-8 products in the state. All products will be reviewed and tested by the Michigan Marijuana Regulatory Agency before they can be approved for sale. This certainly isn’t a ban on the products, but it could complicate things for smaller producers.


Fortunately, for the time being, delta-8 is still legal in a majority of states. The outlook certainly isn’t good, though. Even though 28 states haven’t banned delta-8, for many of them it simply feels like a matter of when. That’s if it’s not banned on a federal level first, which could happen. Texas set a precedent in fighting against a bill seeking to ban the substance. Time will tell if other states follow their lead.


It’s an uphill climb, however. For example, there are still a few states that are incredibly harsh on CBD products in any form. These restrictions aren’t based on science, but rather the negative stigma that’s been attached to hemp for decades.


Idaho


In Idaho, any CBD product with THC content is considered a controlled substance and therefore illegal. If you want to legally consume CBD content in the state, it must contain zero THC and be derived from specific parts of the cannabis plant, such as mature stalks, fiber produced from the stalks, or a sterilized seed that isn’t able to germinate.


Back in 2015, the Idaho legislature passed a bill that would have legalized CBD oil (with under 0.3% THC) for use by epilepsy patients. However, Governor Otter vetoed the bill, instead issuing an executive order for expanded access to FDA-approved CBD product Epidiolex.


South Dakota


South Dakota is another state that’s decided to go against the 2018 US Farm Bill and instead put its own law into place. In 2019, the state passed Senate Bill 95, which classifies cannabidiol as a Schedule IV controlled substance. That makes it not only illegal to possess CBD in South Dakota but a felony.


Also in 2019, lawmakers attempted to legalize hemp cultivation, but the bill was vetoed. In March of 2020, lawmakers tried again. House Bill 1008 was passed and it’s now legal to cultivate and process hemp if the THC content does not exceed 0.3%. However, the bill makes no mention of CBD oil, so nothing changed on that front.


Inhaling or smoking any hemp products is illegal in the state, and inhabiting a place where controlled substances are being used or just stored is a misdemeanor.


One could choose to look at this as a glass-half-full type situation, with the vast majority of states legalizing CBD and hemp use in various forms, but the recent crackdown on delta-8 suggests that we’ve taken one step forward and two steps back.


Be sure to continue checking up on the current laws, as they’re all rapidly changing, and there are vastly different schools of thought between even neighboring states.