Delta 8 tetrahydrocannabinol (Delta 8 THC) is a psychoactive cannabinoid found in the Cannabis sativa plant. It is an isomer of Delta 9 THC, the main psychoactive compound in cannabis, but Delta 8 produces milder effects compared to Delta 9 THC. Over the past few years, Delta 8 products have surged in popularity due to their legal gray area status and accessibility online and in stores.
But the legal status of Delta 8 is complex and rapidly changing across the United States. Though federal and state laws indicate Delta 8 derived from hemp containing less than 0.3% Delta 9 THC is legal, many states have banned or restricted Delta 8 products. So where exactly is it legal to buy and use Delta 8 products?
Delta 8 THC Overview
Delta 8 THC is found naturally in tiny concentrations in hemp and cannabis plants. Concentrated Delta 8 products are typically synthesized from CBD or Delta 9 THC to achieve higher potencies. Delta 8 can produce euphoric and relaxing effects similar to Delta 9 THC, but many users report the high as being milder and shorter-lasting.
Delta 8 available online and in stores typically contains less than 0.3% Delta 9 THC. This keeps it compliant under federal law and the 2018 Farm Bill, which removed hemp and any derivatives containing 0.3% or less Delta 9 THC from the Controlled Substances Act. However, laws regulating cannabinoids derived from legal hemp, including Delta 8, fall into a gray area.
The 2018 Farm Bill states that synthetically altering cannabinoids from hemp may be illegal. However, the DEA’s Interim Final Rule clarified that synthetically derived tetrahydrocannabinols remain legal if the final product contains less than 0.3% Delta 9 THC. But states can impose their own restrictions on Delta 8, leading to changing legal statuses across the US.
DEA Stance on Delta 8
In August 2020, the DEA released a statement that Delta 8 THC is a Schedule 1 controlled substance if it is synthesized from CBD or Delta 9 THC derived from cannabis. However, the Hemp Industries Association challenged this ruling in court and the case is still pending. Currently, the DEA does not take action against Delta 8 products derived from legal hemp.
FDA Stance on Delta 8
The FDA does not approve or disapprove any cannabis products, including Delta 8. In September 2021, the FDA sent warning letters to five companies illegally marketing Delta 8 products as dietary supplements. The FDA stated Delta 8 products cannot be sold as dietary supplements because Delta 8 is an active ingredient in the FDA-approved drug Marinol.
Delta 8 Legality by State
Most states follow the federal standard of Delta 8’s legality if derived from hemp with less than 0.3% Delta 9 THC. But legality varies among several states with specific laws addressing Delta 8:
States Where Delta 8 is Legal
- New Hampshire
- New Jersey
- New Mexico
- North Carolina
- North Dakota
- Rhode Island
- South Carolina
- South Dakota
- West Virginia
States Where Delta 8 is Restricted
- Alaska: Delta 8 products cannot contain more than 0.3% Delta 9 THC.
- Arizona: Legal for adults 21 and over. Delta 8 products cannot contain more than 0.3% Delta 9 THC.
- Arkansas: Restricted to medical use only.
- California: Legal for adults 21 and over when derived from legal hemp. The final product cannot contain more than 0.3% Delta 9 THC.
- Colorado: Restricted to 0.3% or less Delta 9 THC for adult recreational use. Medical products may contain more.
- Connecticut: Legal for adults 21 and over. Restricted to 0.3% or less Delta 9 THC.
- Delaware: Legal for adults 21 and over. Restricted to 0.3% or less Delta 9 THC.
- Florida: Legal with restrictions on THC percentage.
- Idaho: Restricted to 0.3% or less Delta 9 THC for medical use only.
- Illinois: Must be derived from legal hemp. Restricted to 0.3% or less Delta 9 THC for adult use.
- Indiana: Legal when containing 0.3% or less Delta 9 THC.
- Iowa: Legal for medical use. Delta 8 products cannot contain more than 0.3% Delta 9 THC.
- Louisiana: Medical use only. Must contain at least 5mg of CBD for every 1mg of THC.
- Michigan: Legal for adult use. Must contain less than 0.3% Delta 9 THC.
- Minnesota: Legal for adults 21 and over. Restricted to 0.3% or less Delta 9 THC.
- Mississippi: Legal for medical use only, recreational use prohibited.
- Nebraska: Legal for medical use only.
- Nevada: Legal for adults 21 and over. Restricted to 0.3% or less Delta 9 THC.
- New York: Legal for adults 21 and over. Restricted to 0.3% or less Delta 9 THC.
- Washington: Legal for adults 21 and over. Restricted to 0.3% or less Delta 9 THC.
States Where Delta 8 is Illegal
- Alaska (banned by SB 30 effective June 29, 2022)
- Arizona (banned by HB 2956 effective September 24, 2021)
- Arkansas (banned by SB 380 effective March 15, 2021)
- Colorado (banned by HB 1317 effective October 1, 2021)
- Delaware (banned by SB 39 effective June 15, 2021)
- Kentucky (banned by SB 57 effective April 8, 2022)
- Idaho (banned by HB 354 effective July 1, 2021)
- Iowa (banned by HF 716 effective May 20, 2021)
- Mississippi (banned by SB 2119 effective July 1, 2021)
- Montana (banned by HB 657 effective October 1, 2021)
- North Dakota (banned by HB 1045 effective August 1, 2021)
- Oklahoma (banned by SB 1033 effective November 1, 2021)
- Oregon (banned by SB 408 effective January 1, 2022)
- South Dakota (banned by HB 1205 effective July 1, 2021)
- Utah (banned by HB 430 effective May 5, 2021)
- Vermont (banned by S.54 effective July 1, 2022)
- Washington (banned by SB 5263 effective May 12, 2021)
States with Pending Legislation on Delta 8
Some states currently have bills in the legislature seeking to clarify or restrict the legality of Delta 8 products:
- Connecticut: HB 5485 would explicitly legalize and regulate Delta 8 products as legal cannabis products.
- Hawaii: SB 3169 would place restrictions on the sale of synthetically derived cannabinoids, including Delta 8.
- Kansas: HB 2416 would ban the sale and possession of all tetrahydrocannabinols derived from synthesis, including Delta 8.
- Kentucky: HB 217 would restrict the THC content of retail cannabis products to 0.3% Delta 9 THC or less.
- Michigan: HB 4517 would explicitly legalize and regulate the production and retail sale of Delta 8 and other hemp-derived products.
- New Mexico: SB 100 would regulate Delta 8 products under the existing Cannabis Control Act to allow adult recreational use.
- New York: SB 854 would restrict the allowable amount of Delta 9 THC in cannabinoid hemp products to 0.3% or less.
- North Carolina: HB 766 would restrict the allowable amount of Delta 9 THC in retail cannabis products to 0.3% or less.
- Ohio: HB 498 would restrict the allowable amount of THC in retail cannabis products to 0.3% Delta 9 THC or less.
- Tennessee: SB 2269/HB 1879 would place tighter restrictions on the THC content of cannabis-derived products.
Local Laws on Delta 8
Some cities and counties within legal states have enacted complete bans or additional restrictions on Delta 8 products:
- The Los Angeles County Department of Public Health banned Delta 8 products.
- New York City has banned Delta 8 products.
- In Texas, the city of Denton banned commercial sale and distribution of Delta 8 products.
- Austin, Texas requires Delta 8 products to contain 0.3% or less Delta 9 THC.
- The city of Provo, Utah has banned Delta 8.
- Delta 8 is banned in Douglas County, Nebraska.
Purchasing Delta 8 Online
When purchasing Delta 8 products online, it’s important to verify their legal status in your state. Reputable Delta 8 companies will only ship to states where Delta 8 is legal and clearly state Delta 9 THC percentages on product labels.
You should also research the company’s manufacturing processes. Responsible brands will have their products tested for purity and safety by an independent lab. The COA (certificate of analysis) from third-party testing will verify the Delta 8 purity and Delta 9 THC concentrations.
Traveling With Delta 8 Products
It is risky to travel across state lines with any cannabis products, including Delta 8. Since legality varies between states, you could potentially face criminal charges for possession.
The TSA allows passengers to travel with hemp-derived products as long as they contain 0.3% or less Delta 9 THC. However, if officials are suspicious that your Delta 8 contains more than 0.3% Delta 9 THC, you may face questioning or being reported to law enforcement.
Driving with cannabis products while crossing state lines also poses risks. States may consider it drug trafficking even if it is legal in your state of departure and destination.
Flying With Delta 8
To avoid problems when flying with Delta 8 products:
- Verify the Delta 8 contains 0.3% or less Delta 9 THC.
- Keep Delta 8 products in carry-on luggage.
- Keep a copy of the third-party COA to verify THC percentages.
- Do not take opened Delta 8 products on a plane.
- Consult both your departure and arrival airports for any local restrictions.
Driving With Delta 8
To lower risks for driving:
- Consult local laws in states you will pass through or stay overnight.
- Keep unopened Delta 8 products in their original packaging.
- Do not drive under the influence of Delta 8.
- Avoid transporting any opened Delta 8 products.
Delta 8 THC Takeaways
Delta 8’s murky legal status leads to complex, rapidly changing laws state-by-state. While Delta 8 remains federally legal under the 2018 Farm Bill if derived from legal hemp, many states have imposed bans and restrictions due to safety concerns. A growing number of states have introduced new legislation in 2022 to tighten regulations on Delta 8 THC products.
It’s critical to research your state and any states you may travel to in order to follow all laws regarding Delta 8 products. When buying Delta 8, only purchase from transparent companies that provide third-party testing results to confirm legal THC limits are met. Avoid crossing state lines with opened Delta 8 products to steer clear of the possibility for drug trafficking charges.
Frequently Asked Questions
Is Delta 8 legal federally?
Yes, Delta 8 derived from legal hemp containing 0.3% or less Delta 9 THC is legal federally under the 2018 Farm Bill. However, some states have imposed restrictions or total bans.
What states have banned Delta 8?
The states with current bans on Delta 8 products include Alaska, Arizona, Arkansas, Colorado, Delaware, Idaho, Iowa, Kentucky, Mississippi, Montana, North Dakota, Oklahoma, Oregon, South Dakota, Utah, Vermont, and Washington.
Is Delta 8 legal in Texas?
Yes, Delta 8 is legal in Texas as long as it is derived from legal hemp and contains 0.3% or less Delta 9 THC.
Is Delta 8 legal in Florida?
Delta 8 is legal in Florida but may be subject to restrictions on the allowable amount of Delta 9 THC. Delta 8 products must follow federal regulations of having less than 0.3% Delta 9 THC.
Can you fly with Delta 8?
Yes, you can fly with Delta 8 products as long as they meet TSA regulations by containing less than 0.3% Delta 9 THC. Keep all Delta 8 products in carry-on luggage and do not take opened products on a plane.