The Good, the Bad, and the Confusing On Delta-8's Legality

The Good, the Bad, and the Confusing On Delta-8's Legality

There is no surprise that Delta-8 has absolutely destroyed the market in terms of popularity as being a federally legal, hemp-derived cannabinoid that still gets you high.  As you might expect, the psychoactive nature of it creates some confusion on the state-level.  In this guide today, we want to provide a full state-by-state breakdown on the legality of Delta-8.  Where is the cannabinoid legal, illegal, or soon to be regulated?  Let's dive in!

 

Let's Get the Confusion Out of the Way

 

Before we jump into the state interpretation of Delta-8, it's worth noting how, in the eyes of the federal government, Delta-8 retains its legality.  H.R. 2: The Agricultural Improvement Act of 2018, otherwise known as the Farm Bill specifically makes all derivatives, isomers, and cannabinoids in hemp legal, provided the final product contains less than 0.3% Delta-9 THC.  This means that Delta-8 THC, usually being derived from CBD, which is in turn being derived from hemp, is ultimately legal.

But what about the DEA's list of scheduled drugs via the Controlled Substances Act?  We get it - the fact that the USDA and the DEA have very conflicting interpretations of where Delta-8 lies definitely confuses things.  To clear that confusion once and for all, the 2018 Farm Bill explicitly removes all tetrahydrocannabinols found in hemp, thus further cementing Delta-8's legality on a federal level...for now.  Obviously, since brands like Eighty Six cannot ship its products to all 50 states nationwide, there still lies a bit more confusion down the ladder.

 

Legal Disclaimer

 

Before we get into the breakdown, please understand the legal ramifications of this article.  The information provided on this website does not, and is not intended to be legal advice.  The information on this article and everywhere on the site are for general informational purposes only and may not constitute the most up-to-date legal information.

Laws can and may ultimately be up to the interpretation of a court, judge, and/or jury.  Law and/or legal enforcement contrary to our interpretation of the legality of Delta-8 may occur.  Eighty Six Brand is neither responsible nor liable for any legal discrepancies that may occur should such an interpretation occur.

 

The State-By-State Breakdown of Delta-8 Legality

 

 

state by state breakdown of delta-8 legality


Alabama

STATUS: LEGAL

 

Alabama state law currently follows suit with federal law, effectively legalizing all derivatives, cannabinoids, and isomers of hemp.  Delta-8 THC is therefore legal statewide to purchase, possess, and consume.  HB2 reclarifies that all types of THC are controlled substances except for THC in hemp.


Alaska

STATUS: ILLEGAL

 

According to the House CS For CS  For Senate Bill No. 6, psychoactive cannabinoids outside of traditional THC remains illegal across the state of Alaska.  As odd as this seems, considering that traditional Delta-9 THC is legal, the state maintains its specific ban on Delta-8 THC.


Arizona

STATUS: ILLEGAL

 

Again, this is rather odd that despite Arizona recently legalizing recreational cannabis for its residents, the §§ 3-201, 3-311, and A.A.C. R3-4-101 effectively state that every compound of THC is expressly illegal.  We'll have to see how the state looks to reclarify Delta-8's status in the coming months; but until then, Delta-8 is off the table.


Arkansas

STATUS: ILLEGAL

 

The House Bill 1415. Act 329.  Arkansas Department of Health - List of Controlled Substances defines cannabis as all parts of the cannabis plant, growing or not, is not to be marketed publicly.  This means the seeds, resins, compounds, salts, derivatives (this Delta-8), and extracts are all considered cannabis, and maintains its status as a controlled substance; therefore effectively criminalizing our favorite minor cannabinoid.


California

STATUS: LEGAL

 

California maintains its stance of hemp-derived products similarly to the federal government's stance on them.  The California Industrial Hemp Law Division 24, Title 3, Division 4, Chapter 8 classifies anything hemp-derived to be an agricultural product, thus legalizing Delta-8 THC under the same regulations as the federal definition of it.


Colorado

STATUS: ILLEGAL

 

You would think that Colorado being one of the cannabis meccas in the country to have legalized Delta-8 right?  WRONG!  Delta-8 is, in fact, illegal in the state thanks to SB14-184, which effectively pools all THCs as the same.  In addition to that, the Colorado Revised Statutes of 2016 expressly bans Delta-8 from its purchase, possession, and consumption within the state.


Connecticut

STATUS: LEGAL

 

According to Substitute Senate Bill No. 893 and Title 21A.  Chapter 420B - Dependency-Producing Drugs, Connecticut specifically legalized all derivatives, cannabinoids, and isomers of hemp exceptDelta-9 THC.  Delta-8 is safe to purchase, possess, and consume within the state.


Delaware

STATUS: ILLEGAL

 

Title 16. Chapter 47. Uniform Controlled Substances Act classifies and criminalizes Delta-8 and other derivatives of the cannabis plant as a controlled substance.  Unfortunately, the purchase, possession, and consumption of Delta-8 is illegal in the state of Delaware.


Florida

STATUS: LEGAL

 

As it stands, Delta-8 and other derivatives, cannabinoids, and isomers of hemp, including THCs not explicitly Delta-9 THC, are legal thanks to SB1020 and the state's hemp program.

Now before anyone under 21 years of age decides to walk into a smoke shop to pick up a Delta-8 Vape Cartridge, you should be aware of SB1766.  If passed, Delta-8 THC sales would be restricted to persons 21 and older.  The bill would also establish labeling and shipping requires and creates criminal penalties should any shop sell its products to anyone under the age of 21.


Georgia

STATUS: LEGAL

 

Georgia's HB213 effectively classifies hemp-derived derivatives, cannabinoids, and isomers that effectively contain less than 0.3% Delta-9 THC as legal, thus making Delta-8 fully legal to purchase, possess, and consume within the state.


Hawaii

STATUS: LEGAL

 

Hawaii's HB2689 clarifies that hemp grown by a licensee is not marijuana and amends references to THCs in state law to exclude hemp-derived THCs.  As a resident of Hawaii, it is fully legal to purchase, possess, and consume Delta-8.


Idaho

STATUS: ILLEGAL

 

HB122 effectively bans both cannabis and hemp-derived derivatives, cannabinoids, and isomers within the state.  Unfortunately, Idaho does not make any distinction between the two forms of cannabis, and instead sees it all as one psychoactive substance.  Hopefully in the future, the state can redefine its legal status; but until then, Delta-8 is off-limits.


Illinois

STATUS: LEGAL

 

Illinois keeps things simple and follows suit with the federal stance on industrial hemp.  As long as its compounds are hemp-derived and contains less than 0.3% Delta-9 THC, it's all good!  You should be fine in purchasing, possessing, and consuming Delta-8 THC.


Indiana

STATUS: LEGAL

 

Indiana's Senate Enrolled Act No. 516 defines a hemp product as a derivative, extract, cannabinoid, isomer, acid, salt, and salt of isomer as long as the Delta-9 THC concentration does not exceed 0.3%.  Article 48 expands on this definition by stating that unless it's otherwise classified as a controlled substance on another schedule, hemp-derived THCs such as Delta-8 shall remain legal!


Iowa

STATUS: ILLEGAL

 

Unfortunately Chapter 96 mandates that there is no distinction between cannabis and hemp-derived substances.  In addition, Iowa Code 124 - Controlled Substances effectively include all forms of THC the same as marijuana, which still exists as a Controlled Substance, therefore making Delta-8 illegal within the state.


Kansas

STATUS: LEGAL

 

Looks like Kansas amended SB263 a few times to effectively reclassify hemp-derived products as legal.  You should be safe in purchasing, possessing, and consuming Delta-8 products as long as its federal mandate of containing less than 0.3% Delta-9 THC is honored.


Kentucky

STATUS: LEGAL

 

Delta-8 is legal according to Kentucky's KRS 260.850 TO 260.869 Industrial Hemp and 40 KRS 218A.010 statutes.  It is worth mentioning, however, that the state intends to regulate the compound especially from producers that aren't actively licensed within its hemp pilot program.  As a consumer, you should be relatively safe to purchase, possess, and consume Delta-8; just make sure you're doing your research and purchasing from a reputable brand!


Louisiana

STATUS: LEGAL

 

Louisiana's HB491 effectively exempts industrial hemp from its list of controlled substances.  This means any part of the plant that contains less than 0.3% Delta-9 THC is legal.  This means you should be fine in purchasing, possessing, and consuming Delta-8 products.


Maine

STATUS: LEGAL

 

Title 7 of Maine's Industrial Hemp Statute falls in line with the federal government's stance on changing hemp's classification to an agricultural product.  Thus, effectively legalizing all the plant's parts, including Delta-8 as a legal substance for purchase, possession, and consumption within the state.


Maryland

STATUS: LEGAL

 

Delta-8 is legal thanks to HB1123, which effectively legalizes all derivatives, cannabinoid, and isomers of hemp as long as Delta-9 THC does not exceed 0.3%.  You should have no issue in purchasing, possessing, and consuming Delta-8 within the state.


Massachusetts

STATUS: LEGAL

 

Delta-8 is legal thanks to Bill H.4001, which effectively legalizes all derivatives, cannabinoid, and isomers of hemp as long as Delta-9 THC does not exceed 0.3%.  You should have no issue in purchasing, possessing, and consuming Delta-8 within the commonwealth.


Michigan

STATUS: CONFUSING

 

Michigan's stance on Delta-8 is confusing to say the least due to conflicting laws.  HB6330 effectively states that all industrial hemp-derived derivatives, isomers, and cannabinoids are legal.  However, the state's Public Health Code that contains its list of controlled substances define Delta-8 as otherwise.

As a consumer, is it safe to purchase, possess, and consume?  Until the state revises either of its laws, we think not.


Minnesota

STATUS: LEGAL

 

Minnesota's 2019 Statutes on controlled substances falls in line with the federal government's stance on hemp-derived products.  As long as the finished product contains less than 0.3% Delta-9 THC, it is fully legal to purchase, possess, and consume within the state.


Mississippi

STATUS: ILLEGAL

 

Mississippi's SB2725 dated back from 1972 has not changed its views on cannabis and hemp since!  The bill defines tetrahydrocannabinols (THC) as a controlled substance.  Therefore, it is illegal to purchase, possess and consume any cannabis product, Delta-8 included, within the state.


Missouri

STATUS: LEGAL

 

Like all states, Missouri's Department of Public Health maintains its own list of controlled substances that may or may not fall in line with the DEA's list of controlled substances.  Fortunately for Missouri residents, Title XII, Ch. 195 of the Public Health and Welfare statute effectively reclassify hemp-derived products as not being a controlled substance.  You should be fine in purchasing, possessing, and consuming Delta-8 products within the state.


Montana

STATUS: ILLEGAL

 

Montana's state laws do not make a distinction between cannabis and hemp-derived THCs.  Unfortunately, it is illegal to purchase, possess, and consume any cannabis product, Delta-8 included, within the state.


Nebraska

STATUS: CONFUSING

 

Nebraska is another one of those states that have conflicting laws as it pertains to hemp-derived legality.  Legislative Bill 657 of the Nebraska Hemp Farming Act states that all derivatives, extracts, cannabinoids, isomers, and all other parts are legal and are not to be considered a controlled substance.  At the same time, however, Chapter 28 of the Uniformed Controlled Substances Act state otherwise.

As a consumer, is it legal to purchase, possess, and consume Delta-8?  Until the state clarifies, we think not.


Nevada

STATUS: LEGAL

 

Nevada being a state that fully legalized cannabis a few years ago, the state shares a similar stance as the federal government for its hemp-derived products.  Both Chapter 557 - Hemp and Chapter 453 - Controlled Substances state that hemp-derived cannabis parts, including that of Delta-8 are legal to purchase, possess, and consume within the state.


New Hampshire

STATUS: LEGAL

 

New Hampshire's HB-459-FN follows the thinking of the federal government's classification of hemp-derived plant parts containing less than 0.3% Delta-9 THC as being an agricultural product.  The state's Controlled Drug Act further defines derivatives such as Delta-8 as not being included in its controlled substances list.  As a consumer, it is legal to purchase, possess and consume Delta-8 within the state.


New Jersey

STATUS: LEGAL

 

According to New Jersey's Hemp Program, hemp products are not considered controlled substances due to the presence of hemp-derived cannabinoids.  Following the federal government's definition of the plant, the state makes a clear distinction between industrial hemp and traditional cannabis, thus opening up the doors to Delta-8's legality for the average consumer.  You should be fine to purchase, possess, and consume Delta-8 products within the state.


New York

STATUS: LEGAL

 

New York's Articles 29 and 33 define hemp-derived plant parts both as an agricultural commodity and non-inclusive on the state's controlled substances list.  As of May 2021, however, New York state recently passed SB0854 which places both Delta-8 and Delta-9 THCs are taxable products under its cannabis law.  As a consumer, you should be fine in purchasing, possessing, and consuming Delta-8 products within the state, albeit with an increased price tag.


North Carolina

STATUS: LEGAL

 

The Second Edition of North Carolina's SB352 redefines hemp-derived cannabinoids, derivatives, and all other plant parts as agricultural commodities.  The legislation also removes Delta-8 THC among other cannabinoids from the state's controlled substances list, therefore legalizing Delta-8 products for state residents.


North Dakota

STATUS: ILLEGAL

 

In a recent revision of the state's HB1045, legislation was rephrased to include allTHC as being a controlled substance.  Therefore, within the state of North Dakota, both Delta-8 and Delta-9 THC are illegal to purchase, possess, and consume within the state.

In recent history, the state proposed HB1420, which would amend the definition of Delta-8, removing it from the controlled substances list.  While the bill passed the House, it failed to pass in the Senate.  Hopefully, with enough public support, it'll pass the next time it rolls around.


Ohio

STATUS: LEGAL

 

Ohio's Amended Substitute Senate Bill Number 57 revised the state's definition of hemp.  Following the federal government's stance on the plant to include any part of it as legal.  Therefore, on the controlled substances list, Delta-8 THC is no longer included.  As an Ohio resident, you should be safe from legal worries should you decide to purchase, possess, or consume Delta-8 products within the state.


Oklahoma

STATUS: LEGAL

 

Title 2 of the Oklahoma Statutes define hemp and all its parts as an agricultural commodity.  In addition, Title 63 of the state's Public Health Code remove derivatives of hemp from its controlled substances list; thus making Delta-8 products legal to purchase, possess, and consume.


Oregon

STATUS: LEGAL

 

The OAR - Chapter 604 - Division 48 - Industrial Hemp legislation within Oregon defines industrial hemp as an agricultural commodity while also simultaneously making a clear distinction between that and traditional cannabis.  Due to the new distinction, hemp-derived plant parts that contain less than 0.3% Delta-9 THC are therefore removed from the state's controlled substances list.  As a resident of the state, you should be safe in purchasing, possessing, and consuming Delta-8.

As of May 2021, Oregon's HB3000 would define THC to include all THCs and intoxicating cannabinoids that are artificially derived.  The bill would also prohibit sales of cannabinoid products that are intended for human consumption to those over the age of 21.


Pennsylvania

STATUS: LEGAL

 

Pennsylvania's HB1899 makes the distinction between industrial hemp and its respective plant parts and traditional cannabis.  SB936 further defines traditional cannabis as part of the state's controlled substances list, but not hemp plant parts.  As a resident of the commonwealth, it is legal to purchase, possess, and consume Delta-8 products.


Rhode Island

STATUS: ILLEGAL

 

Delta-8 THC is not legal according to Rhode Island state law.  While the state legalizes hemp as an agricultural commodity through Chapters 2-26 of the Hemp Growth Act, Title 21 Code of Federal Regulations effectively keeps allTHCs on its controlled substances list.  Therefore, it is illegal to purchase, possess, or consume Delta-8 products.


South Carolina

STATUS: LEGAL

 

South Carolina's HB3449 defines hemp and its respective plant parts that contain less than 0.3% Delta-9 THC as legal.  You should be fine should you decide to purchase, possess, or consume Delta-8 products.


South Dakota

STATUS: LEGAL

 

South Dakota's HB1191 amends its existing laws to not include industrial hemp as a controlled substance and that all plant parts of hemp following the federal regulation of not exceeding 0.3% Delta-9 THC as legal.  You should be fine in purchasing, possessing, and consuming Delta-8 within the state.


Tennessee

STATUS: LEGAL

 

Tennessee's SB357 defines hemp and all its plant parts as an agricultural commodity.  Section 3 of that same piece of legislation also effectively removes the plant and its associated parts from the state's controlled substances list.  It is fully legal to purchase, possess, and consume Delta-8 within the state.


Texas

STATUS: LEGAL

 

Texas Hemp legislation effectively classifies all plant parts of industrial hemp as an agricultural commodity while also simultaneously removing it from its controlled substances list.  As long as the Delta-9 THC concentration does not exceed 0.3%, all hemp-derived products, including Delta-8 are legal to purchase, possess, and consume.


Utah

STATUS: ILLEGAL

 

While Utah does make a distinction between traditional cannabis and industrial hemp, Chapter 37 of the state's Controlled Substances Act does not make that same distinction between the THCs.  Delta-9, Delta-8 and any other derivatives of tetrahydrocannabinol remain illegal to purchase, possess, and consume within the state.

As it stands now, the state's SB39 makes it unlawful to distribute, sell, or market a hemp or cannabinoid product that contains more than 0.3% of a THC analogue, in this case, Delta-8 is illegal.  The Utah Governor vetoed the bill but the state Congress overrides the veto thanks to a two-thirds majority.  If you are a Utah resident and would like the state to reconsider its position on Delta-8's legal status, we urge you to take action now!

 

TAKE ACTION NOW


Vermont

STATUS: ILLEGAL

 

According to the Vermont Hemp Rules, the use of synthetic cannabinoids in the production of any hemp product is illegal.  So while Delta-8 itself is not illegal, the extraction method that is most-commonly used, by extracting it out of CBD, is.  As a result, anyone who uses, possess, or distributes Delta-8 may face criminal charges, thus making it illegal within the state.


Virginia

STATUS: LEGAL

 

Chapter 653 of the Virginia state legislation defines hemp and its associated plant parts legal, in line with the federal government's definition.  Effective July 1, 2020, the state also removed hemp-derived plant parts not exceeding 0.3% Delta-9 THC from its controlled substances list, thus making minor cannabinoids such as Delta-8 legal to purchase, possess, and consume.


Washington

STATUS: LEGAL

 

Washington state's SB5276 defines hemp and its associated plant parts not exceeding 0.3% Delta-9 THC as agricultural commodities.  The bill also removes its place on its controlled substances list, thus making it fully legal to purchase, possess, and consume within the state.


West Virginia

STATUS: LEGAL

 

According to West Virginia's HB2694, hemp and its associated plant parts not exceeding 0.3% Delta-9 THC as agricultural commodities.  The bill also removes its place on its controlled substances list, thus making it fully legal to purchase, possess, and consume within the state.


Wisconsin

STATUS: LEGAL

 

Chapter 94 - Plant Industry as part of Wisconsin's Hemp Pilot Program defines hemp and its associated plant parts not exceeding 0.3% Delta-9 THC as agricultural commodities.  Chapter 961 - Uniform Controlled Substances Act also removes hemp-derived plant parts from the state's controlled substances list, thus making minor cannabinoids such as Delta-8 fully legal to purchase, possess, and consume.


Wyoming

STATUS: LEGAL

 

According to Wyoming's HB0171, Chapter 31 - Hemp Production, hemp and its associated plant parts not exceeding 0.3% Delta-9 THC as agricultural commodities.  The bill also removes its place on its controlled substances list, thus making it fully legal to purchase, possess, and consume within the state.

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