Delta 8 Legality: Where is Delta 8 Illegal?

Photo by: Simon Schwyter via Unsplash.com

Article Updated 3/22/2022

Delta-8 has soared in popularity across the country in the last couple of years as an alternative to the psychoactive THC found in marijuana. The delta-8 isomer provides much mellower and smoother effects, often described as a pleasant mix of euphoria and calmness. Users say it helps regulate sleep patterns, control seizures, and relieve appetite loss. But with the laws on THC and cannabis out there constantly evolving, many are asking: is delta-8 legal in my state?

There are several questions about delta-8 legality, some of which have no straightforward answer. Plus, the various delta-8 bans and restrictions across different states can make it hard to know if you can purchase it in your area. In this guide, we’ll take an in-depth look at delta-8 regulations and help you answer the questions on everyone’s mind: in what states is delta-8 legal?

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What is Delta-8? 

Delta-8, also known as D8 THC or dronabinol, is a hemp-derived cannabinoid oil that can be consumed either in pill form or by vaporization.

The difference between delta-8 and other THC compounds – like its brother delta-9, for example – is the location of a double bond within the compound itself. In fact, this is the only difference scientists have been able to identify between the two. The difference for users is that delta-8 binds to the cannabinoid receptors in your body slightly differently, meaning it’s not as potent. 

Many people don’t believe that delta-8 carries as many psycho-active properties as marijuana and Delta 9 THC products. However, because it can still produce similar effects, delta-8 legality remains a controversial issue.

Is Delta-8 Federally Legal? 

Some states have legalized delta-8 products. However, there are still several delta-8 illegal states because the plant is listed as a Schedule I drug, meaning the Drug Enforcement Administration (DEA) deem it to have a high potential for abuse. But, is delta-8 federally legal? Yes, but largely thanks to a loophole in the 2018 Farm Bill that distinguishes hemp products from marijuana products. 

The 2018 Farm Bill

Under the 2018 Farm Bill, also known as the Agriculture Improvement Act of 2018, delta-8 THC is legal because it derives from hemp rather than marijuana. 

The Farm Bill decriminalized hemp because it contains less than 0.3% delta-9 THC in dry weight, which is considered too low to have any psychoactive effect. However, the bill doesn’t address individual compounds within the plant, hence why legality questions arise and knowing where is delta-8 available can be challenging. 

Because the compound remains unregulated at the federal level, many states make their own delta-8 regulations.

Where is Delta-8 Legal? 

Here is a list of the states where delta-8 is legal and the restrictions that apply. 

Florida

Delta-8 is legal and there is no possession limit. However, products must be sourced from hemp plants and contain less than 0.03% THC. Marijuana compounds remain illegal. 

Georgia

Hemp-derived delta-8 is legal. However, fines of up to $5,000 and the possibility of jail time apply to products derived from marijuana.

Hawaii

While marijuana compounds remain illegal, hemp-based delta-8 is legal under the Hawaii House Bill 2689 (a statewide bill similar to the countrywide 2018 Farm Bill). 

Indiana

Delta-8 is legal, provided it is derived from hemp and not marijuana. Marijuana-derived delta-8 is prohibited and punishable by fines and jail time.

Kansas

Hemp-derived delta-8 is legal. However, marijuana-derived delta-8 is a Class B misdemeanor carrying fines of up to $1,000 and six months jail time.

Louisiana

House Bill 491 aligns state laws with the 2018 Farm Bill for hemp-based products. However, anyone in possession of less than 14 grams of marijuana-derived delta-8 products may be fined, and jail time is a possibility for larger quantities. 

Maine

Both hemp and marijuana-derived delta-8 are legal in Maine, and there is no possession limit. 

Maryland

House Bill 698 aligns state laws with the 2018 Farm Bill for hemp-based products, so hemp-derived delta-8 is legal. Marijuana compounds remain illegal, although possession of 10 grams or less has been decriminalized.

Massachusetts

House Bill 4001 aligns state laws with the 2018 Farm Bill for hemp-based products, so hemp-derived delta-8 is legal. Following the Massachusetts Ballot Initiative of 2016, adults over 21 are also legally allowed to possess up to 1 ounce of marijuana-derived delta-8.

Michigan

Under House Bill 4517, hemp-based delta-8 is legal but can only be sold with a license from the Michigan Marijuana Regulatory Agency (MMRA).

Minnesota

Under the Minnesota Industrial Hemp Development Act, hemp-based delta-8 is legal. Marijuana-derived delta-8 remains illegal, but has been decriminalized. Possession of 42.5 grams or less is classed as a petty misdemeanor with a maximum $200 fine.

Missouri

Hemp-based delta-8 is legal, while marijuana-derived delta-8 remains illegal, but has been decriminalized. Possession of 10 grams or less is classed as a petty misdemeanor punishable by a fine only.

Nebraska

Legal Bill 657 aligns state laws with the 2018 Farm Bill for hemp-based products, so hemp-derived delta-8 is legal.

New Hampshire

House Bill 459 aligns state laws with the 2018 Farm Bill for hemp-based products. Plus, the state’s Controlled Substances Act does not list delta-8 as illegal. Marijuana-derived delta-8 remains illegal, but has been decriminalized. The maximum fine is $100. 

New Jersey

Bill A5322 (The New Jersey Hemp Program) aligns state laws with the 2018 Farm Bill for hemp-based products. In 2021, the state legalized recreational cannabis, so marijuana-derived delta-8 is also legal.

New Mexico

Under the New Mexico Hemp Manufacturing Act, delta-8 products are legal. New Mexico has also legalized recreational cannabis for adults over 21, so marijuana-derived delta-8 is also legal.

North Carolina

Senate Bill 352 aligns state laws with the 2018 Farm Bill for hemp-based products, so hemp-derived delta-8 is legal. Marijuana-derived delta-8 is illegal, but possession of 0.5 ounces or less is a misdemeanor carrying a maximum fine of $200.

Ohio

Ohio Senate Bill 57 legalized the growth and sale of CBD products, so hemp-derived delta-8 is legal. Medical marijuana is legal in Ohio, so marijuana-derived delta-8 is also permitted, but not for recreational use.

Oklahoma

According to the Oklahoma Industrial Hemp Program, hemp-derived delta-8 is legal, but marijuana-derivatives are not.

Oregon

House Bill 3000 deems delta-8 legal. The Oregon Liquor and Cannabis Commission (OLCC) caps THC levels for adults over 21 and medical marijuana cardholders above 18, but there are no current restrictions on delta-8 sales. 

Pennsylvania

 Pennsylvania’s House Bill 967 legalized hemp-based delta-8 in 2016, two years before the 2018 Farm Bill was updated. Marijuana compounds, however, remain illegal.

South Dakota 

South Dakota has strict cannabis laws, but hemp-based delta-8 is not classed as a controlled substance and is therefore legal. However, possession of an ounce or more of marijuana-derived delta-8 carries a fine of up to $2,000. 

Tennessee

State laws align with the 2018 Farm Bill for hemp-based products, so hemp-derived delta-8 is legal. Marijuana-derived delta-8 products remain illegal, and possession of over half an ounce carries fines of up to $200 and one year jail time.

Texas

Hemp-derived delta-8 is currently legal in Texas. House Bill 2593, which aimed to impose a delta-8 ban, failed to pass. A temporary injunction following a court case between state lawmakers and delta-8 vendors means hemp-derived products remain legal for the time being.

Virginia 

Both hemp and marijuana-derived delta-8 are legal in Virginia under House Bill 1839.

Washington DC

There are no specific state laws that govern delta-8 in Washington DC, meaning hemp-derived delta-8 products are legal under the 2018 Farm Bill.

West Virginia

 House Bill 2694 aligns state laws with the 2018 Farm Bill for hemp-based products, so hemp-derived delta-8 is legal. However, possession of marijuana-derived delta-8 products is illegal, carrying penalties of up to $1,000 in fines and 6 months jail time. 

Wisconsin 

Hemp-derived delta-8 is legal, but marijuana-derived delta-8 is not. Possession of marijuana derivatives is a misdemeanor, with penalties and jail time varying between first-time and subsequent offenses. 

Wyoming

House Bill 0171 aligns state laws with the 2018 Farm Bill for hemp-based products, so hemp-derived delta-8 is legal. However, marijuana-derived delta-8 products remain strictly illegal.

Where is Delta-8 Illegal? 

Most states that impose a delta-8 ban cite a lack of clinical research on the psychoactive effects. However, even without an outright ban, delta-8 legality in some states remains unclear. 

States with a Delta-8 Ban

Alaska

Delta-8 is considered a Schedule IIIA controlled substance under state law and is illegal. Depending on quantity and intent, possession ranges from Class C misdemeanor to felony.

Arizona

Delta-8 is considered a Schedule I controlled substance under state law and is illegal. Possession penalties are the same as for marijuana – up to two years’ jail time for a Class 6 felony.

Arkansas

Delta-8 is considered a Schedule IV controlled substance under state law and is illegal. Depending on quantity and intent, possession ranges from Class A misdemeanor to Class D felony.

California

Hemp-derived delta-8 is illegal. However, you can buy up to 28.5 grams of marijuana-derived delta-8 from a licensed dispensary.

Colorado

Despite having relatively relaxed medical and recreational marijuana laws, the possession and use of delta-8 is prohibited under the Uniform Controlled Substances Act.

Connecticut

Due to legalized medical and recreational use under Senate Bill 1201, only state-licensed dispensaries can sell delta-8 products. However, since licensing applications aren’t even available yet, it remains illegal for now.

Delaware

Delta-8 is classed as a Schedule I substance under the Uniform Controlled Substances Act and is illegal. Penalties for possession depend on quantity and intent.

Idaho

Home to the strictest hemp and marijuana laws in the country, no THC products of any percentage are legal, and penalties for possession are harsh.

Iowa

Delta-8 is a controlled substance, and neither hemp nor marijuana derivatives are legal. However, possession penalties tend to be softer than in other states. 

Mississippi

Neither hemp nor marijuana derivatives are legal. The maximum fine for possession is $200, but harsher penalties apply for subsequent offenses. 

Montana

Delta-8 is a state-controlled substance and illegal following updates to the Controlled Substances Act in 2019. 

Nevada

Delta-8 is classed as a Schedule I controlled substance under state law and is illegal. Possession penalties come in the form of hefty fines or jail time. 

North Dakota

Both hemp and marijuana derivatives of delta-8 are illegal under North Dakota House Bill 1045.

Rhode Island

Delta-8 is classed as a Schedule I substance under the Uniform Controlled Substances Act, and is illegal. Penalties for possession depend on quantity and intent.

Utah

Delta-8 is a state-controlled substance and illegal under the Utah Controlled Substances Act. Depending on quantity and intent, penalties range from Class B misdemeanor to felony.

Vermont

The Vermont Agency of Agriculture, Farms, and Markets (AAFM), which controls that state’s hemp program, deems delta-8 products prohibited under state law.

Washington

Delta-8 is classed as a Schedule I substance and is illegal. Furthermore, the Washington State Liquor and Cannabis Board (WSLCB) claims the synthetic and chemical process involved in producing delta-8 products go against the state’s hemp laws.

States Where Delta-8 Regulations are Unclear or Under Review

In the following states, delta-8 use is either under official legal review, or its status is unclear, meaning users and vendors need to be cautious.

Alabama

State laws align with the 2018 Farm Bill for hemp-based products, so hemp-derived delta-8 is theoretically legal. In 2021, state lawmakers attempted to ban delta-8 under House Bill 2, but the bill failed to pass. More legal moves are likely in the imminent future.

Illinois

Both hemp and marijuana-derived delta-8 are currently legal. However, following statements from FDA and CDC about safety, state lawmakers are currently moving to regulate (although not necessarily restrict or outright ban) delta-8 products.

Kentucky

The Kentucky Department of Agriculture’s legal counsel released a statement saying hemp and marijuana-derived delta-8 is illegal under federal law, which it isn’t. However, that hasn’t stopped the police from raiding vendors, and the jury is out on criminal repercussions regarding possession. The Kentucky Hemp Association is currently in a legal battle with the state. 

New York

The New York Cannabis Control Board (CCB) has gone back and forth, at first banning delta-8 over improper labeling, before releasing a statement saying regulation may be on the way. Either way, distribution is restricted, and it’s unclear whether possession is punishable under state law. 

South Carolina

Delta-8 legality is a gray area due to Attorney General Alan Wilson’s claims that hemp-derived products within the federal 0.3% THC limit are prohibited. So, while it’s not technically illegal in the absence of specific state regulations, repercussions for vendors and users are unclear.

Unrivaled Quality from Delta Munchies

While the question of “where is delta-8 illegal?” can still be murky, we hope we’ve given you enough information to help you distinguish where you can buy the THC industry’s latest craze. However, please note that this article is not meant as legal advice. If you are still unsure about delta-8 legality in your state, it’s best to speak with a qualified drug crimes attorney.

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