Is delta-8 THC legal? Where (and why) the hemp product skirts marijuana laws.

The legal framework for delta-8 THC that exists is a bit of a patchwork. The intoxicating cannabinoid has had a meteoric rise in popularity across the country, in part due to its availability even in states where marijuana is illegal. 

The substance, which is sourced from hemp, is legal at the federal level through a loophole in the 2018 farm bill. However, various states have banned it and others are actively working on regulation.

The result is a map that is confusing for both consumers and producers.

Here's what you should know about the hazy and ever-evolving legal landscape of delta-8 legislation. 

Is delta-8 legal?

Since delta-8 THC is sourced from hemp, and not marijuana, it is legal and unregulated at the federal level. The 2018 farm bill legalized hemp, cracking open an industry with offshoots in textile manufacturing, medicine and (albeit accidentally) intoxicants.

With sales exploding across the country, legislators and medical professionals have begun to sound the alarm on not only the unchecked accessibility but also the unregulated production process.  

“What I am paranoid about is legalizing and using legally stuff that we don’t know anything about. And we know very little about delta-8,” said Daniele Piomelli, the director of the Centfor the Study of Cannabis at the University of California Irvine. 

As a state-by-state regulations begin to take shape, Piomelli worries that the right voices are not being heard. Most lawyers have no idea about the chemistry, he said.

Though delta-8 is similar to delta-9 — the chemical component of marijuana that accounts for that "high" feeling — they are not identical. Both are psychoactive and connect to the same receptor in the brain to cause intoxication, but delta-8's connection is weaker, creating a lesser effect (hence the nickname "diet weed"). That said, without formal regulation, the potency of delta-8 products varies and may not be reliably less psychoactive than delta-9 products.

Most delta-8 is not sourced directly from the plant, but instead synthesized from CBD, which occurs more plentifully in hemp. That process can involve chemicals not fit to consume.

Why is delta-8 legal?

The government defines hemp as any part of the cannabis sativa plant with no more than 0.3% of THC — anything over that ventures into illegality.

A legal dispute challenging the legitimacy of the loophole created by the 2018 farm bill was shot down in May 2022 when a federal judge in California ruled that the production of delta-8 along with other hemp-derived cannabidiols was legal.  

“Regardless of the wisdom of legalizing delta-8 THC products, this court will not substitute its own policy judgment for that of Congress,” Judge D. Michael Fisher wrote in the court’s unanimous decision.

In punting the decision to Congress, the court left room for states to step in and create their own legislation.

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In what states is delta-8 legal?

Twenty-four states including Washington DC have unintentionallylegalized hemp-derived intoxicants by updating their controlled substance law to reflect changes in the 2018 farm bill, said Chris Lindsey, the Director of State Campaigns and Public Policy at the American Trade Association of Cannabis and Hemp.

Because the farm bill defined hemp as being cannabis with less than 0.3% delta-9 THC, delta-8, as well as delta-10, are technically legal in those 24 states. 

The rest of the map is ever-evolving, but this is where it currently stands, according to materials from the American Trade Association for Cannabis and Hemp.

States that regulate delta-8

Rather than let the proliferation go unchecked, a number of legislatures have chosen to regulate the production and sale of delta-8. Those states include:

• Minnesota
• Louisiana
• Kentucky
• South Dakota
• Virginia
• Vermont
• Florida
• Tennessee

For states that have already legalized marijuana, delta-8 is regulated by agencies that were already charged with keeping an eye on intoxicating cannabis substances. These states include:

• Connecticut
• Maryland
• Michigan
• Nevada
• Oregon
• Utah
• New York

States where delta-8 is banned

Other states had laws on the books that prohibited the sale of delta-8 or have put in place bans after the 2018 farm bill. Those states include:

• Alaska
• Arizona
• Arkansas
• Colorado
• Delaware
• Idaho
• Iowa
• Mississippi
• Montana
• North Dakota
• Rhode Island
• Washington

One state passed regulatory authority to their marijuana programs and those bodies chose to ban it. Those states are:

• California

Delta-8 is also banned in Hawaii but by an administrative rule, not a law.

In Arkansas and Maryland, state laws have been passed attempting to regulate Delta-8 but actions brought in federal court have stalled a regulatory framework. While for now, it remains unregulated, the gears are in motion for a change, Lindsey says. A similar case could arise in Indiana, but the courts have not yet ruled on a preliminary injunction which stalls the regulation. In Virginia, a court ruled recently that the state was free to regulate.

The cannabis conundrum 

A question that resurfaces often in the delta-8 debate is whether, if marijuana were more widely legal, there would even be a market for delta-8 products.

Piomelli thinks not. While there are always a few outliers who want to experiment, he believes the vast majority of people would prefer regular "pot" if given the choice. It has been more extensively studied and, ostensibly, yields better results (aka, a stronger high). 

Miller said anecdotally, delta-8 has seen increased popularity in states where weed is not legal and it can be used as a substitute. 

“There is only one simple solution to this and it is not regulating but deregulating, removing cannabis from Schedule I," Piomelli said. 

With one unambiguous step, the federal government could quash the delta-8 issue and financially de-incentivize the marijuana-look-alike market, he argued. 

Others are not as certain. 

“We’re not vouching for the use of gin but we need to take the bathtub out of bathtub gin,” Lindsey said. 

While he understands that some scientists and medical professionals believe delta-8 has not been sufficiently studied to justify legality, he believes regulation is a public health need. 

“Creating a regulatory program isn’t the same as embracing the product," he said, explaining that the government wouldn't be endorsing delta-8, it's creating a harm reduction framework.

In a system Piomelli describes as "born of confusion," the growing consensus among advocates is that there should be at least a few clear lines. 

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