Where is Delta 8 illegal in the US?

Delta-8 THC has been a sensation in the country. Its popularity soared throughout 2020 and many believed its reign of euphoric bliss would continue into 2022 and beyond. However, the federal government and the DEA are swooping in to ruin all the fun. 

In April, alone, several U.S. states either restricted or banned delta-8 THC, sparking outcry from users, companies, manufacturers, and vendors within the cannabis industry.  So, why are U.S. states banning delta-8 THC? Which ones have already banned it? What have the federal government and the DEA got to do with this?

Where is delta-8 THC legal?

• Delta-8-THC’s reign of blissful euphoria in the U.S. could be coming to an end — 21 states have already restricted or banned it
• Delta-8 is stuck in a legal grey area. The 2018 Farm Bill legalized all hemp and hemp compounds but the DEA still believes it’s a controlled substance
• The US Hemp Authority has stopped certifying delta-8 THC products and advises companies to cease producing delta-8
• The delta-8 ban in Texas was lifted after a judge temporarily blocked the state from classifying it as a controlled substance
• New York is now the most recent state to put restrictions on the production and sale of delta-8 products
• On May 20, 2022, a U.S. Court of Appeals for the Ninth Circuit panel ruled 3-0 in favor of delta-8 products being legal and not defined as marijuana under the 2018 Farm Bill. Read more below.

Which states have regulated, restricted, or banned delta-8?

Currently, 21 U.S. states have restricted or banned delta-8 THC and a further four states are currently reviewing its legal status. 

The 21 U.S. states that have regulated, restricted, or banned delta-8:

1. Alaska
2. California 
3. Colorado
4. Connecticut
5. Delaware
6. Idaho 
7. Iowa
8. Louisiana
9. Maryland
10. Michigan
11. Minnesota
12. Montana
13. New York
14. Nevada
15. North Dakota
16. Oregon
17. Rhode Island
18. South Dakota
19. South Carolina
20. Utah
21. Vermont

Live update: Where is delta-8 legal?

Last updated: October 2022

Here you can find the latest on whether delta-8 THC is available and legal in your state. We work around the clock to provide you with the latest developments on the statewide legality of delta-8 and its products.

Delta-8 is available in 29 states + 1 district:

1. Alabama
2. Arizona
3. Arkansas
4. Florida
5. Georgia
6. Hawaii
7. Illinois
8. Indiana
9. Kansas
10. Kentucky
11. Maine
12. Massachusetts
13. Mississippi
14. Missouri
15. Nebraska
16. New Hampshire
17. New Jersey
18. New Mexico
19. North Carolina
20. Ohio
21. Oklahoma
22. Pennsylvania
23. Tennessee
24. Texas
25. Virginia
26. Washington
27. Washington DC
28. West Virginia
29. Wisconsin
30. Wyoming

State-by-state guide to delta-8’s legality

Alabama (AL)

Delta-8 is legal in Alabama and is not considered a prohibited controlled substance following the passage of Senate Bill 225, which legalized hemp and hemp-derived compounds, coinciding with the federal Agriculture Improvement Act (Farm Bill). The passing of SB 225 means the use, possession, sale, distribution, purchase, and production of delta-8 products are permitted under state law. However, at the beginning of 2021, Alabama lawmakers tried to ban delta-8 and delta-10 and place it on their list of controlled substances with House Bill 2. Later, in February 2022, State Sen. Tim Melson introduced a new bill (House Bill 144) attempting to ban delta-8 and other intoxicating hemp compounds. Fortunately, both the bills failed to pass, much to the relief of delta-8 vendors operating within the state. Learn more about the legal status of delta-8 in Alabama.

Alaska (AK)

Alaska doesn’t permit the use, possession, sale, distribution, or production of delta-8 and classifies it as a Schedule IIIA controlled substance under state law. Schedule IIIA includes all tetrahydrocannabinols such as delta-10 and THC-O.  Possession of delta-8 ranges from a Class C misdemeanor to a felony, depending on quantity and intent. 

Arizona (AZ)

It’s not entirely clear why many believe delta-8 is illegal in Nevada. It isn’t. Delta-8 products are restricted and regulated under the state’s cannabis regulatory framework. According to a newsletter published by the Nevada Cannabis Compliance Board (CCB) delta-8 and other intoxicating THC isomers are Schedule I controlled substances. Delta-8 companies must register for CCB licensing before their products can be produced and sold, indicating that delta-8 is regulated under the state’s existing cannabis laws. However, Senate Bill 1715, which passed the Senate in March 2022, seeks to ban delta-8 and make the sale and manufacturing of delta-8 products a felony. Learn more about the legal status of delta-8 in Arizona.

Arkansas (AR)

Delta-8 in Arkansas is questionably legal. Under state law, Arkansas classifies delta-8 as a Schedule IV controlled substance, placing it alongside other tetrahydrocannabinols such as delta-10 and HHC. However, according to an official source, the state’s health department has not explicitly banned or permitted the use, possession, sale, or production of delta-8 products, leaving it to the discretion of local law enforcement to take action if required.

California (CA)

Delta-8 is restricted in California under state law. Using, possessing, selling, distributing, and producing hemp and marijuana-derived delta-8 products are regulated. While you cannot possess any hemp-derived product with more than 0.3% delta-8 THC, you can purchase up to 28.5 grams of marijuana-derived delta-8 from a licensed dispensary. See the latest updates for delta-8 in California.

Colorado (CO)

Surprisingly, delta-8 is not legal in Colorado despite very relaxed medical and recreational marijuana laws. The state does not permit the use, possession, sale, distribution, and production of delta-8 products following a notice from the Colorado Department of Health & Environment (CDPHE). The notice states, “chemically modifying or converting any naturally occurring cannabinoids from industrial hemp is non-compliant with the statutory definition of ‘industrial hemp product’”. As a result, Colorado considers delta-8 a controlled substance, as outlined in SB 14-184 and the Uniform Controlled Substances Act. 

However, there are reports suggesting delta-8 is sold freely across the state and law enforcement isn’t cracking down on unlicensed vendors. A recent bill (Senate Bill 205) passed in May created a task force that will study intoxicating hemp compounds and focus on consumer protection. The task force will submit a report to the general assembly by the end of 2022. Learn more about the legal status of delta-8 in Colorado.

Connecticut (CT)

Contrary to common belief, Connecticut regulates delta-8 under its existing marijuana laws following Senate Bill 1201. This bill only allows licensed dispensaries and hybrid retailers to sell delta-8 products. Unlicensed vendors cannot legally stock or sell delta-8. However, there are unofficial reports stating that delta-8 products are available through unlicensed retailers.

Delaware (DE)

Delta-8 is not legal in Delaware, meaning the state does not permit the use, possession, sale, distribution, and production of delta-8 products under state law. While Delaware recently decriminalized simple marijuana possession in small quantities, the state clarifies all tetrahydrocannabinols are banned substances under Schedule I of its Uniform Controlled Substances Act. Penalties for delta-8 possession range from fines to extended prison times depending on quantity and intent.

Florida (FL)

Hemp-derived delta-8 is legal in Florida under state law, meaning its use, possession, sale, distribution, and production is permitted within its borders without risk of penalty or prosecution. There are also no possession limits. However, delta-8 derived from marijuana is not legal in Florida. Marijuana and marijuana-derived compounds are strictly illegal. Learn more about the legal status of delta-8 in Florida.

Georgia (GA)

Hemp-derived delta-8 is legal in Georgia. The use, possession, sale, distribution, and production of delta-8 products is legal under state law without fear of penalty or prosecution. Marijuana-derived delta-8 is illegal, though some cities and counties have decriminalized simple possession. Penalties for marijuana-derived delta-8 possession vary depending on quantity and intent. Possession of 1 ounce or less of marijuana or marijuana-derived delta-8 is a misdemeanor punishable by up to one year in prison and a maximum $1,000 fine. Possession of more than 1 ounce is a felony punishable by up to five years in prison and a maximum $5,000 fine. Learn more about the legal status of delta-8 in Georgia.

Hawaii (HI)

Delta-8 is tentatively allowed in Hawaii, though its legality is somewhat questionable. The Hawaii state government released a statement in 2019 stating all cannabis-derived compounds do not conform to FDA rules and that the interstate sale and purchase of cannabis-derived products are illegal. While the statement doesn’t mention delta-8 explicitly, it’s still a cannabis compound like CBD, CBG, and CBC, meaning Hawaii might consider delta-8 a banned substance by default. However, hemp-derived delta-8 is widely available across Hawaii according to unofficial sources. Many users claim that physical stores sell delta-8 products with law enforcement issues.

Idaho (ID)

Idaho is renowned for having the toughest hemp laws in the country. No hemp-derived product can carry any percentage of THC or its isomers, as outlined under House Bill 126 and in the Idaho Uniform Controlled Substances Act. Therefore, hemp-derived delta-8 is banned in Idaho under state law, which means the use, possession, sale, distribution, and production of delta-8 products are not permitted anywhere within the state. Likewise, marijuana and marijuana-derived delta-8 are strictly forbidden. Penalties for marijuana-derived delta-8 possession are harsh. Possession of 3 ounces or less is punishable by up to 1 year in prison and a fine of up to $1,000. Learn more about the legal status of delta-8 in Idaho.

Illinois (IL)

Hemp-derived delta-8 is legal in Illinois, and its use, possession, sale, distribution, purchase, and production are permitted under Illinois state law, as outlined in its Industrial Hemp Act. However, following warnings from the FDA and CDC over the safety of delta-8, Illinois lawmakers tried to regulate delta-8 products but not entirely restrict or ban them. The bill made it through the Senate but failed in the House. 

Later, in March 2022, the Illinois Department of Agriculture issued a policy statement disallowing producers from chemically synthesizing delta-8 from CBD, essentially banning delta-8 products altogether. However, since policy statements aren’t legally binding or backed by official legislation, hemp-derived delta-8 remains tentatively legal. Marijuana and marijuana-derived delta-8 are also legal under state law following the passage of the Illinois Cannabis Regulation & Tax Act. Under this law, Illinois residents can possess up to 30 grams of cannabis or 500 mg of THC, presumably including delta-8. Learn more about the legal status of delta-8 in Illinois.

Indiana (IN)

After a stressful couple of months, delta-8 remains legal in Indiana after surviving the 2022 state legislative session. Senate Bill 209, introduced by Sen. Mike Young and later amended by Sen. Liz Brown, was seeking to ban hemp-derived delta-8, citing consumer safety concerns. The bill fortunately died due to concerns that the language would also prohibit CBD oil.  However, since medical and recreational cannabis is illegal in Indiana, marijuana-derived delta-8 is  prohibited under state law. Learn more about the legal status of delta-8 in Indiana.

Iowa (IA)

Delta-8 laws in Iowa are confusing. It’s likely an illegal controlled substance with law enforcement turning a blind eye to vendors openly selling delta-8 products within the state. Chapter 124 of the Iowa Controlled Substances Act states all tetrahydrocannabinols are Schedule I controlled substances. The Iowa Department of Agriculture & Land Stewardship also officially declares the possession and manufacture of delta-8 products as prohibited. According to House File 2581, all inhalable cannabis products (including delta-8) are illegal. Inhalable products include vape pens, flower and pre-rolls.

Kansas (KS)

Delta-8 is tentatively legal in Kansas. However, the state’s attorney general released a controversial opinion piece stating the use, possession, and sale of delta-8 products are “unlawful” unless it contains no more than 0.3% total tetrahydocannabinols. This combined THC percentage would essentially make all delta-8 products prohibited.

While all this seems like doom and gloom, it’s worth pointing out that an attorney general’s opinion piece isn’t legally binding, and delta-8 remains somewhat accessible online and through physical retail stores. Medical and recreational cannabis is banned. Possession of marijuana-derived delta-8 is a Class B misdemeanor punishable by up to six months in prison and a maximum fine of $1,000. Learn more about the legal status of delta-8 in Kansas.

Kentucky (KY)

Kentucky temporarily allows hemp-derived delta-8, meaning the use, possession, sale, purchase, and production of delta-8 products are currently legal (pending review). In 2021, the Kentucky Department of Agriculture’s legal counsel published a memo stating hemp and marijuana-derived delta-8 is a controlled substance and illegal under federal law, meaning it’s also prohibited under state law.

Following this memo, law enforcement began raiding several delta-8 vendors, confiscating and seizing entire delta-8 product ranges. As a result, the Kentucky Hemp Association (KHA) sued the state and asked for a temporary injunction similar to the one in Texas. A Kentucky judge ruled in favor of the KHA and implemented an injunction that officially but temporarily legalizes delta-8 products in February 2022. A new legislative attempt (Senate Bill 170) to ban delta-8 was introduced to the Senate later that month but died during the committee stage. Learn more about the legal status of delta-8 in Kentucky.

Louisiana (LA)

Delta-8 in Louisiana is regulated with strict limitations following the recent passing of House Bill 758, signed into law on 16 June 2022. Under this new law, unlicensed hemp vendors selling delta-8 must now become licensed by the state and submit each product for testing to ensure consumer safety. No product can contain more than 0.5 milligrams of delta-8 or any other THC isomer. No licensed vendor can sell delta-8 products to anyone under 21. Medical cannabis is legal but heavily regulated and recreational adult-use cannabis remains decriminalized. Penalties for possessing marijuana-derived delta-8 vary depending on quantity and intent. Learn more about the legal status of delta-8 in Louisiana. 

Maine (ME)

Hemp-derived delta-8 is not considered a state-controlled illegal substance and is perfectly legal under state law, which coincides with federal law after the passage of Legislative Document 1159. The use, possession, sale, distribution, purchase, and production of delta-8 products are permitted in the state without risk of penalty or punishment. Likewise, marijuana and marijuana-derived delta-8 are also legal in Maine under state law. 

Maryland (MD)

Hemp-derived delta-8 is now regulated under the state’s existing marijuana laws following Senate Bill 778, signed into law on May 29, 2022 and effective on July 1, 2022. No persons under the age of 21 can use, possess, or purchase delta-8 products. Likewise, no delta-8 company can sell or distribute delta-8 products to anyone 21 or under. The bill also creates a taskforce composed of the Natalie M. LaPrade Medical Cannabis Commission and other health and science organizations in consultation with the Maryland State Departure of Agriculture. According to the bill, this taskforce will “study and make recommendations on the classification and regulation of tetrahydrocannabinols, other than delta-9, that are artificially, synthetically, or naturally-derived.”

Massachusetts (MA)

Hemp-derived delta-8 is not explicitly banned in Massachusetts following Bill H.4001, which coincides with the federal hemp laws set out by the Agriculture Improvement Act. However, the Massachusetts government website claims delta-8 is a controlled substance and the state will not allow the sale or production of synthetically made hemp-derived delta-8. It’s unknown whether the use or possession of delta-8 is allowed. These claims are not backed by legislation and are likely not legally binding.

Michigan (MI)

Michigan regulates delta-8. Only state-licensed companies can sell, distribute, and manufacture delta-8 products following House Bill 4517, signed by Governor Whitmer on 14 July 2021 (effective 11 October 2011). No delta-8 vendor in Michigan can sell delta-8 products without proper licensing from the Michigan Marijuana Regulatory Agency (MMRA), which regulates marijuana and marijuana-derived delta-8 THC. Likewise, no vendor can legally sell delta-8 products to anyone under 21. Learn more about the legal status of delta-8 in Michigan.

Minnesota (MN)

Delta-8 is restricted and regulated in Minnesota. The state recently passed legislation (House File 3595) limiting edible hemp products to 5 mg of THC per serving (50 mg per package). All other hemp products can only contain up to 0.3% of any tetrahydrocannabinol, including delta-8, delta-9, delta-10, and HHC. No one under 21 can purchase these products. This bill has essentially prevented the sale and distribution of most delta-8 products, effectively prohibiting and banishing them from legal existence. Learn more about the legal status of delta-8 in Minnesota.

Mississippi (MS)

Delta-8 is not legal in Mississippi under state law and is considered a prohibited controlled substance. The state’s 2019 House Bill 1547 legalized hemp and hemp-derived compounds, aligning its laws with the federal Agriculture Improvement Act (Farm Bill). However, the bill did not remove THC or any of its isomers from the controlled substances list, including delta-8. The use, possession, sale, distribution, purchase, and production of delta-8 are not permitted. Marijuana and marijuana-derived delta-8 are also not permitted under state law. Possession of 30 grams or less of marijuana-derived delta-8 is punishable by a maximum $200 fine (first-time offenders).  

Missouri (MO)

Delta-8 is perfectly legal in Missouri and doesn’t categorize it as a controlled substance following the passage of House Bill 2034, which legalized hemp and hemp-derived compounds. This bill means the use, possession, sale, distribution, purchase, and production of hemp-derived delta-8 is legal under state law. Marijuana is illegal but decriminalized if caught with 10 grams or less. Penalties for marijuana or marijuana-derived delta-8 possession are punishable by a fine. However, it’s still classified as a criminal misdemeanor. 

Montana (MT)

Delta-8 is a state-controlled substance and not legal in Montana under state law following amendments to its Controlled Substances Act in 2019. The legal status of delta-8 means the use, possession, sale, distribution, and production of delta-8 products are prohibited within state borders. However, recreational marijuana for adults aged 21+ is legal in Montana, though it’s unclear whether marijuana-derived delta-8 is permitted under the same cannabis laws.

Nebraska (NE)

Delta-8 is legal in Nebraska. It’s not considered a controlled substance under state law following the Nebraska Hemp Farming Act (Legal Bill 657). It has subsequently been amended and revised since its existing hemp laws coincide with the federal Agriculture Improvement Act (Farm Bill). This bill means the use, possession, sale, distribution, purchase, and production of hemp-derived delta-8 is legal in Nebraska under state and federal law. Learn more about delta-8 in Nebraska.

Nevada (NV)

Delta-8 is legal but restricted and regulated under the state’s existing cannabis laws following Senate Bill 42, signed by Steve Sisolak. This bill allows the sale and distribution of hemp products carrying above 0.3% delta-8 and delta-9 through the state’s regulated cannabis network. All delta-8 vendors and their products must be licensed by the Nevada Cannabis Compliance Board (NCCB). Unlicensed vendors cannot sell delta-8 in any form. However, reports indicate that unlicensed delta-8 products are widely and illegally available across the state. Learn more about delta-8 legal status in Nevada.

New Hampshire (NH)

Under state law, delta-8 is legal in New Hampshire and isn’t considered a prohibited controlled substance following the passage of House Bill 459, which broadly legalized hemp and hemp-derived compounds, including delta-8. The state’s Controlled Substances Act also doesn’t specifically list delta-8 as illegal. Recreational marijuana or marijuana-derived delta-8 is not legal but decriminalized in New Hampshire. Possessing small quantities (three-quarter ounces or less) of marijuana-derived delta-8 products is a civil violation and punishable by a maximum fine of $100. 

New Jersey (NJ)

Delta-8 THC is legal in New Jersey and not classified as a controlled substance under state law following the passage of Bill A5322, which later became the New Jersey Hemp Program. This program legalized hemp and hemp-derived compounds, including delta-8. Therefore, the use, possession, sale, distribution, purchase, and production of hemp-derived delta-8 are legal in New Jersey under state law. New Jersey recently legalized recreational cannabis after A-21 was signed into law in 2021, meaning marijuana-derived delta-8 is also permitted under state law. 

New Mexico (NM)

Delta-8 is legal in New Mexico and not categorized as a controlled substance under state law according to the New Mexico Hemp Manufacturing Act, which legalized hemp and hemp compounds, including delta-8. Therefore, the use, possession, sale, distribution, purchase, and production of hemp-derived delta-8 are legal without risk of penalty or prosecution. New Mexico also legalized recreational marijuana for adults aged 21+ following the New Mexico Cannabis Regulation Act, meaning marijuana-derived delta-8 is also legal under state law. 

New York (NY)

Delta-8 is illegal in New York. The sale, distribution, and production of delta-8 products are banned in the state following an announcement from the New York Cannabis Control Board (CCB), citing a lack of safety and improper mislabeling. A CCB spokesperson later stated delta-8 might be regulated later through an adult-use program similar to its recreational marijuana program. However, it’s unclear whether the use and possession of hemp or marijuana-derived delta-8 are punishable under state law. Learn more about the legal status of delta-8 in New York.

North Carolina (NC)

Delta-8 is legal in North Carolina and is not categorized as a controlled substance under state law following the passage of Senate Bill 352. The bill amended the North Carolina Controlled Substances Act, excluding all hemp-derived cannabinoids, including delta-8. Delta-8’s exclusion from the list of controlled substances means its use, possession, sale, distribution, purchase, and production is permitted within state borders. However, neither medical cannabis nor recreational marijuana is legal in North Carolina, meaning marijuana-derived delta-8 use and possession is illegal within the state. Possession of 0.5 ounces of marijuana or marijuana-derived delta-8 is a misdemeanor punishable by a maximum $200 fine. Learn more about delta-8’s legality in North Carolina.

North Dakota (ND)

Delta-8 is illegal in North Dakota and is considered a controlled substance under state law following the passage of North Dakota House Bill 1045. This bill amended the state’s already existing hemp bill to include delta-8 as a prohibited substance alongside delta-9 THC specifically. As of 2021, the use, possession, sale, distribution, purchase, and production of hemp-derived delta-8 products are not permitted within the state. Marijuana and marijuana-derived delta-8 are also illegal under state law. Learn more about the legal status of delta-8 in North Dakota.

Ohio (OH)

Hemp-derived delta-8 is legal in Ohio and isn’t classed as a controlled substance under state law following the passage of Ohio Senate Bill 57, which legalized hemp and hemp compounds, including delta-8. This bill means the use, possession, sale, distribution, purchase, and production of delta-8 THC products are permitted within the state without risk of penalty or prosecution. While medical marijuana is legal in Ohio, recreational cannabis remains illegal, as is the recreational use of marijuana-derived delta-8 for non-medicinal purposes. Effective 2 May 2022, medical marijuana producers will now be required to list delta-8, delta-10, and other THC isomer levels on product packaging. Learn more about the legal status of delta-8 in Ohio.

Oklahoma (OK)

Hemp-derived delta-8 is legal under Oklahoma state law and is not listed as a controlled substance following the enactment of the Oklahoma Industrial Hemp Program. This act legalized hemp and hemp-derived compounds, including delta-8, meaning the use, possession, sale, distribution, purchase, and production of delta-8 products is perfectly legal across the state. Oklahoma Gov. Kevin Stitt later signed a bill excluding delta-8 from the definition of marijuana, allowing physical retail stores and online vendors to sell delta-8 products. However, recreational marijuana and marijuana-derived delta-8 are not legal.

Oregon (OR)

Delta-8 is legal in Oregon but regulated by the Oregon Liquor and Cannabis Commission (OLCC) following the passage of House Bill 3000, signed into law by Governor Kate Brown. The bill creates a new class of cannabinoids known as “Adult Use Cannabinoids,” including delta-8, delta-10, and other THC isomers. The sale of any product with a THC level above 0.5 mg is legal to adults aged 21+ unless the user is a medical marijuana cardholder below 21 but over 18. However, unlike recreational and medical marijuana in Oregon, there are no restrictions on the sale of delta-8. Users can find delta-8 products in physical retail stores and online. 

Pennsylvania (PA)

Delta-8 is legal and unrestricted in Pennsylvania. The state allows delta-8 and other hemp-derived cannabinoids following House Bill 967 in 2016, two years before the federal Farm Bill amendments. However, Penn. Senators Judith L. Schwank and Shariff Street introduced a memorandum to the state’s Senate on 6 April 2022 proposing a ban on hemp-derived delta-8 products, citing consumer health and safety concerns. No official legislation seeking to limit, restrict, or prohibit delta-8 products has passed thus far. Learn more about the legal status of delta-8 in Pennsylvania.

Rhode Island (RI)

Delta-8 is not legal in Rhode Island under state law and is classified as a Schedule I controlled substance under the state’s Uniform Controlled Substances Act. This classification means the use, possession, sale, distribution, purchase, and production of hemp and marijuana-derived delta-8 products are strictly forbidden. Possession of an ounce or less of delta-8 as a first-time offender is a civil violation and punishable by a maximum $150 fine. A subsequent offense is a misdemeanor punishable by up to one year in prison and a $500 fine.

South Carolina (SC)

Delta-8 is legal in South Carolina, but Attorney General Alan Wilson claims delta-8 products derived from hemp plants carrying the federal 0.3% THC limit aren’t permitted anywhere in the state. Wilson’s comment on the legality of delta-8 in South Carolina means the use, possession, sale, distribution, and production of delta-8 products are in a grey area but likely not officially prohibited. Learn more about delta-8’s legality in South Carolina.

South Dakota (SD)

Delta-8 is regulated in South Dakota. State lawmakers passed House Bill 1292 in March 2022, allowing adults 21 and over legal access to delta-8 and other intoxicating hemp products, including delta-10, HHC, and THC-O. Bill sponsor Rep. Taylor Rehfeldt believes delta-8 regulation supports a safe environment for consumers. For a state with a historically tough stance on cannabis and cannabis-derived compounds, this bill is essentially a miracle. Marijuana and marijuana-derived compounds remain illegal. Possession of 1 ounce or less of marijuana-derived delta-8 carries no penalty. However, possession of 1-2 ounces of marijuana-derived delta-8 is punishable by up to a year in prison and a maximum $2,000 fine.

Tennessee (TN)

Delta-8 is legal in Tennessee and isn’t considered a controlled substance following Senate Bill 354, which legalized hemp and hemp-derived compounds. However, delta-8’s legality was called into question after Rep. William Lamberth introduced House Bill 1927 on 25 January 2022, aiming to ban delta-8 and all other hemp-derived products carrying more than the 0.3% THC limit, citing a lack of regulatory oversight and low consumer safety.

Fortunately, House Bill 1927 failed to pass, keeping the use, possession, sale, purchase, and production of delta-8 products legal. Marijuana and marijuana-derived delta-8 are not legal in Tennessee and are punishable under state law. The penalties for marijuana-derived delta-8 use and possession vary depending on quantity and intent. Possession of half an ounce is punishable by up to 1 year in prison and a maximum $250 fine. Learn more about the legal status of delta-8 in Tennessee.

Texas (TX)

Delta-8 is temporarily legal in Texas following a long and arduous battle between state lawmakers and delta-8 vendors. In September, Texas lawmakers attempted to ban delta-8 products with House Bill 2593. This bill would have limited the quantity of all tetrahydrocannabinols to 0.3%, making it near-impossible to produce effective delta-8 THC products. Fortunately, the bill failed to pass and died in the legislature. 

However, over a month later, the Texas Department of State Health Service (DSHS) updated its website, claiming delta-8 is an illegal controlled substance prohibited within the state. Austin-based delta-8 vendor, Hometown Hero, fought against the DSHS, sued them, and asked for an injunction. In November, the court granted Hometown Hero’s application for a temporary injunction, placing delta-8 as legal for the time being. Learn more about the legal status of delta-8 in Texas (and stay up to date with any recent changes with a live timeline of events).

Utah (UT)

Delta-8 is restricted and regulated under the state’s existing medical marijuana laws, meaning only medical marijuana patients with a qualifying condition can use, possess and purchase delta-8 products. All delta-8 companies and their products must be licensed by the state’s department of health. There are reports of unlicensed vendors selling delta-8 products across the state with very little trouble from law enforcement. See the latest updates in Utah.

Vermont (VT)

Delta-8 is not legal in Vermont following an announcement from the Vermont Agency of Agriculture, Farms, and Markets (AAFM), which oversees and regulates the state’s hemp program. The AAFM considers the possession, sale, and manufacture of synthetically-derived delta-8 products prohibited under state law and could be categorized as a controlled substance. Therefore, the possession, sale, and manufacture of delta-8 products is likely punishable under state law. However, a new bill (H. 548) is currently making its way through the Vermont legislature and it seeks to regulate delta-8 products under the state’s existing marijuana laws but has not moved since May 2022.

Virginia (VA)

Delta-8 is legal in Virginia. The state does not consider it a controlled substance under its Drug Control Act following House Bill 1839, which legalized hemp and hemp-derived compounds, separating them from marijuana and marijuana-derived compounds. Therefore, the use, possession, sale, distribution, purchase, and production of delta-8 products are legal under state law. Likewise, marijuana and marijuana-derived delta-8 are also legal in Virginia, meaning the use and possession of delta-8 derived from marijuana is not prohibited under state law. Learn more about the legal status of delta-8 in Virginia.

Washington (WA)

Contrary to common belief, delta-8 is still legal in Washington. The state’s Liquor and Cannabis Board released a policy statement in 2021 requesting a ban on the sale and manufacture of delta-8 products. A follow-up statement was published later in September 2019 stating delta-8 products are, in fact, prohibited with no exceptions. However, policy statements are generally not legally binding or backed by official legislation, meaning delta-8 products aren’t officially banned. Several legislative attempts to ban delta-8 in 2022 have failed, notably Senate Bill 5983. Learn more about the legal status of delta-8 in Washington.

Washington DC

Delta-8 is likely legal in Washington DC. The federal Agriculture Improvement Act (Farm Bill) legalized hemp and hemp-derived compounds across the entire United States, including delta-8. Washington DC law follows the Farm Bill. 

West Virginia (WV)

Earlier this year, West Virginia lawmakers attempted to restrict and regulate delta-8 with Senate Bill 666, introduced by Senator Woodrum. Fortunately, this bill failed to pass and died shortly after. Therefore, delta-8 remains legal and not classed as a controlled substance under state law, meaning the use, possession, sale, distribution, and production of delta-8 products are permitted without risk of penalty or prosecution.

Wisconsin (WI)

Delta-8 is legal in Wisconsin, and the state does not classify it as a controlled substance, meaning the use, possession, sale, purchase, and product of delta-8 products are permitted without risk of penalty or prosecution. However, marijuana and marijuana-derived delta-8 are not legal under state law. Possession of marijuana-derived delta-8 is a misdemeanor. First-time offenders can face up to 6 months in prison and a maximum fine of up to $500. Subsequent offenses carry harsher punishments, lengthier jail times, and significant fines entering into tens of thousands of dollars. Learn more about the legal status of delta-8 in Wisconsin.

Wyoming (WY)

Delta-8 is fully legal in Wyoming. The state does not categorize hemp-derived delta-8 as a controlled substance following the passage of House Bill 0171, which legalized hemp and hemp-derived compounds, including delta-8. This bill ultimately means the use, possession, sale, distribution, purchase, and production of delta-8 products are legal under state law. However, marijuana and marijuana-derived delta-8 are not permitted within the state. Possession of marijuana-derived delta-8 is punishable under state law. 

Federal court finds delta-8 legal

The delta-8 legality fiasco has finally seen some clarity after a federal appeals court ruling finds delta-8 legal and not defined as marijuana, a federally controlled drug. A three-judge panel for the Ninth Circuit Court of Appeals rejected arguments that delta-8 products synthetically derived from hemp are not legal or protected under the 2018 Farm Bill. 

On May 20, 2022, a U.S. Court of Appeals for the Ninth Circuit panel ruled 3-0 in favor of delta-8 products being legal and not defined as marijuana under the 2018 Farm Bill. 

The ruling followed the lengthy AK Futures LLC (“AK) v. Boyd Road Distro, LLC (“Boyd Street”) court battle. Plaintiff AK, a vape and delta-8 producer, filed a lawsuit against Boyd Street in the U.S. District Court for the Central District of California, claiming copyright and trademark infringement, alleging the company sold counterfeit versions of its products. 

Upon discovering that the 2018 Farm Bill legalizes hemp and hemp-derived compounds, including natural and synthetically-derived delta-8, the court determined copyright and trademark infringement occurred. 

However, this ruling does not deem delta-8 legal or protected across the U.S., just in nine jurisdictions, including California, Nevada, Alaska, Oregon, and Montana. It’s unclear whether other jurisdictions will uphold this ruling. 

The FDA also opposes the use, possession, and sale of delta-8, sending warning letters to vendors allegedly selling illegal delta-8 products. Roughly one-third of all U.S. states currently regulate, restrict or ban delta-8 products altogether.

Delta-8 is one of 113 cannabinoids found in varieties of cannabis (hemp or marijuana) and a variant of delta-9-tetrahydrocannabinol (THC). It’s psychoactive and intoxicating, causing a “high” when consumed. 

However, when compared to delta-9 THC, the effects are far milder and better suited to beginners looking to enjoy the euphoric effects without the side effects commonly associated with delta-9. Delta-8 THC can now be found in several product types such as distillates, vape cartridges, oils, and flower. If you’re looking for high quality products, see CBD Oracle’s picks for the best delta 8 THC products available to buy online.

Why are U.S. states now restricting or banning delta-8 THC?

The reason why several U.S. states are restricting or banning delta-8 is the result of confusing, conflicting, and unclear federal guidelines. This confusion pushed delta-8 into a legal grey area. Were delta-8 users consuming a potentially illegal substance? Were delta-8 producers creating a controlled substance? Were delta-8 vendors selling prohibited products? These questions had vague answers and the concerns were (and still are) very real. 

Delta-8 stuck between the Farm Bill and the DEA

In 2018, the federal government under the Trump administration, signed the Agriculture Improvement Act (2018 Farm Bill), legalizing hemp and all hemp-derived cannabinoids. The bill also removed hemp-derived “tetrahydrocannabinols” such as THCA, THCV, and delta-8 THC from the list of controlled substances. Delta-9 was the only one to stay on it. 

However, in 2020, the DEA issued a controversial interim final rule that sought to bring the Farm Bill further in line with the Controlled Substances Act (CSA), spelling trouble for not only delta-8 but also for delta-10 THC.

Within this final rule, the DEA stated all “synthetically-derived tetrahydrocannabinols remain schedule I controlled substances”. Why is this significant and how is it related to delta-8? Well, in order for companies to have enough delta-8 THC in their products, it must be converted from cannabidiol (CBD) via a structural isomerization process conducted under laboratory conditions. 

This isomerization process takes CBD, alters its molecular structure, and turns it into delta-8. Since it’s produced by chemical or biochemical synthesis and not sourced straight from the hemp plant itself, the DEA believes delta-8 is a synthetic substance. 

The forgotten Federal Analog Act

Amidst the chaos, many have forgotten about the Federal Analog Act, an important section within the Controlled Substances Act (CSA) created to fight against synthetic “designer drugs” way back in the 1980s. 

The specific purpose of the Federal Analog Act is to identify chemicals and substances which are significantly similar to illegal drugs and categorize them as controlled substances under Schedule I or Schedule II of the CSA. 

In this case, it’s not implausible to suggest delta-8, a chemically similar analog of federally illegal delta-9 THC, is actually a controlled substance.

Is delta-8’s safety in question?

Yes. Delta-8’s safety is in question. Why? Because it’s a psychoactive and intoxicating delta-9 THC variant that’s recently exploded into an unregulated market with very little research verifying its effects.

How the industry is responding

The mass exodus of delta-8 THC across the U.S. has been met with a fair amount of silence. This isn’t surprising, to be honest. The U.S. states have been extremely covert about their handling of delta-8 over the past month or so. The lightning pace at which delta-8 is currently being outlawed doesn’t help either. 

One of the most notable responses is from the US Hemp Authority, a renowned third-party hemp certification agency. 

The agency’s president, Marielle Weintraub, Ph.D., believes the culling of delta-8 among the U.S. states isn’t likely to stop, simply because it’s now perceived as a federally controlled substance. 

Do not produce or sell delta-8 products without a permit to produce or sell THC as a controlled substance…The correct path for the legal production and sale of delta-8 products is through a state-licensed adult recreational or medical marijuana operator. 

Marielle Weintraub, Ph.D., US Hemp Authority

At this time, no delta-8 products will be certified by the US Hemp Authority. 

New York becomes the latest US state to prohibit delta-8 THC

New York has now become the most recent U.S. state to ban delta-8 THC. The New York State health department’s amendments of the Official Compilation of Codes, Rules, and Regulations of the State of New York prohibits manufacturers, companies, and vendors from producing, selling, and distributing delta-8 products. 

Excerpt: 

“(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.”

Updated: The New York Department of Health has officially banned delta-8 THC as of November 3, 2021, stating “prohibit the sale of Delta-8 THC products…these products contain intoxicating qualities which are better left to be regulated in the future Adult-Use program.”

Michigan chooses to regulate but not ban delta-8 THC

Effective October 11, 2021, Michigan will regulate but not ban delta-8 and delta-8 THC products. This comes after Michigan Gov. Gretchen Whitmer signed a package of eight separate bills including HB. 4517 and HB. 4742, each defining “THC” and modifying the definitions of “hemp” and “marijuana”.

According to reports, delta-8 will be regulated by the Michigan Marijuana Regulatory Agency (MRA) but there’s no talk of outright banning the cannabinoid. Delta-8 producers will need to have their products go through official procedures and be rigorously tested before going on sale to ensure public health and safety.

While the health and safety of Michigan residents are important, some smaller hemp and delta-8 producers will now face tougher financial hurdles.

Delta-8 could become federally outlawed despite outcry from the industry

As the federal government closes in and many U.S. states are scrambling to close the legal loopholes, delta-8’s fate isn’t looking good.

What’s concerning is the federal government and its band of DEA merry men will be relentless in their quest to shut delta-8 down, leaving hemp users, manufacturers, producers, and vendors in a mess. The booming delta-8 market is a goldmine for many hemp companies and to have that taken away will be a huge blow. 

We hope other U.S. states will continue to fight against the federal government’s attempts to shut down the thriving delta-8 THC market so that delta-8 may remain available to people who need it across the country.

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