Is Delta 8 Legal?

federally legal delta 8 is derived from low-THC cannabis plants

Oh, how times have changed. If you live in a state where marijuana is legal, the days of purchasing your stash from a sketchy dealer are long gone. You don’t even need a dealer to get your marijuana. You can get it at a dispensary or order it online. Easy peasy.

However, if marijuana is illegal where you live, your options are much more limited. Until now. Enter Delta 8 THC, a cannabinoid similar to Delta 9 THC, the one in marijuana that gets you high. It even comes with some extras that many people find attractive. And because it is made from hemp-derived CBD, it is legal in many states across the country.

Confused? Let’s dig into the details.

How Is Delta 8 Legally Sold?

Right now, Delta 8 is one of the most relevant cannabinoids produced by the cannabis plant. Wait, didn’t we say hemp plant above? The definition is a bit twisty, but these two plants are basically the same plant. The difference lies in the amount of THC found in them. Per the 2018 Farm Bill, hemp is defined 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 delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”1 The Farm Bill treats hemp as an agricultural commodity, putting it on par with wheat, grain, and soy. Hemp is not a controlled substance under the Federal Controlled Substances Act.2

Despite the inclusion of “derivatives, extracts, cannabinoids, and isomers” in the federal definition of hemp, the legal status of Delta 8 on the federal level is still somewhat unclear. As recently as August 21, 2020, the United States Drug Enforcement Administration published its Interim Final Rule (IFR) in the Federal Register.3 In its IFR, the DEA indicated that the 2018 Farm Bill did not change the status of synthetically derived THCs because the legal definition of hemp covers only materials that are derived from the plant Cannabis sativa L. In synthetically derived THCs, the concentration of Delta 9 THC does not determine if the material is a controlled substance. All synthetically derived THCs are schedule I controlled substances.

1 7 U.S.C. § 1639o(1)
2 21 U.S.C. § 802(16)(B): “The term “marihuana” does not include— (i) hemp, as defined in section 1639o of title 7.”
3 “Implementation of the Agriculture Improvement Act of 2018”, Federal Register Volume 85, Number 163 (Friday, August 21, 2020).

This ban on “synthetically derived tetrahydrocannabinols” does not mention Delta 8. Additionally, the DEA recently released a statement about Delta 8 THC. The statement covers the recent addition of Delta 8 THC to the controlled substance until a final decision is made on its status. The DEA is currently developing the rules and regulations for marijuana, tetrahydrocannabinols, and other marijuana-related constituents. The impact on the legality of Delta 8 and other tetrahydrocannabinols will not be settled until this rulemaking process is finished. The DEA is reviewing thousands of comments and won’t speculate on what the outcome may be.

Based on the above, it is possible that the DEA may consider the chemical reaction used to derive Delta 8 THC from CBD results in a “synthetic” form of THC and consider it a controlled substance. However, the DEA’s IFR is being challenged in court and until that case has been decided, there probably won’t be clear guidance on the federal legality of Delta 8.

In What States Is Delta 8 Legal?

Currently, there are no regulations on Delta 8 THC in the following states:

  • Alabama
  • California
  • Florida
  • Georgia
  • Indiana
  • Kansas
  • Maine
  • Minnesota
  • Missouri
  • Nebraska
  • New Hampshire
  • New Jersey
  • New Mexico
  • Ohio
  • Oklahoma
  • Pennsylvania
  • South Carolina
  • South Dakota
  • Tennessee
  • Texas
  • Virginia
  • West Virginia
  • Wisconsin
  • Wyoming

Almost as fast as Delta 8 THC became popular, states have begun to take control of, and in some instances, curb its use.

Why Is Delta 8 Legal in Some States?

Although Delta 8 THC laws are different state by state, the legality of Delta 8 often hinges on two main factors.

  1. The state must legalize hemp by using a definition that lines up with the one outlined by federal law. The definition can include varying amounts of Delta 9 THC as long as they don’t exceed the federal legal limit, but it must also include hemp derivatives.
  2. The state must take THC derived from hemp off its Controlled Substances list or take Delta 8 off its prohibited substances list.

Delta 8 THC is generally legal in states that meet these conditions.

However, even if Delta 8 is legal in a particular state, other laws can impact the quality and availability of Delta 8 products in a state. Local hemp laws usually cover:

  • Licensing and Manufacturing
  • Seller Laws
  • Possession Laws
  • Formula Restrictions

The details of these laws vary from state to state, but the bottom line for consumers is that they can impact the availability of Delta 8 products in those states.

Some states have legalized hemp but still ban THC when found in hemp. In these states, hemp is legal if it contains no THC. This means that only certain hemp products, such as CBD isolate, are legal to sell, but Delta 8 is not. This goes for any product that contains any level of THC, such as full-spectrum CBD.

On the other end of the spectrum, some states where marijuana is legal are enacting regulations that require any type of THC product to be tested, verified, and sold in a regulated marketplace, another murky term without a clear definition.

Where to Buy Delta-8

It is easy to get lost in all the ins and outs of the legality of Delta 8. And it does seem like it is changing every day. When it comes to using Delta 8, we recommend reviewing the laws in your state and in any state where you intend to travel or visit.

These local laws may have an impact on the availability and quality of Delta 8 THC near you. However, the USPS has declared that it is legal to ship hemp products in the mail, so you should be able to find quality Delta 8 products online. When looking for Delta 8 products online, be sure to purchase quality products from brands such as Happy Delta that have been third-party verified for purity.

DISCLAIMER- Nothing contained herein shall be construed as legal advice. In order to determine whether you can safely purchase and possess Delta 8 products in your state or jurisdiction, you must consult with an attorney or review the applicable laws and regulations in your state or jurisdiction.