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Is Delta 8 THC Legal? Legal Loopholes & Uncertainty

Is delta 8 THC legal or illegal?

The laws are confusing, so we’ve broken them down for you bit by bit.

Article By
Justin Cooke, last updated on April 12, 2021

Most experts agree, delta 8 THC is legal in the US — with the exception of a few specific states.

However, these laws are vague — leaving a lot of room for interpretation. 

There’s an argument that could be made both in favor, as well as against the legality of delta 8 THC. 

In this article, we’ll break down the arguments both for and against the legality of delta 8 THC, and cover specific laws for each US state as well as Canada, Australia, and the United Kingdom.

  • Table of Contents

The problem with understanding delta 8 THC laws is that most regulatory agencies, (including the DEA) specifically name delta 9 THC as illegal — but there’s no mention of delta 8 anywhere. 

The 2018 Farm Bill, passed by president Trump, removed all hemp-derived products from the Schedule I list of restricted substances. This bill allows any products made from hemp (defined as cannabis plants that contain 0.3% delta 9 THC or less). 

Most other countries use similar wording in their official legislature. 

Most cannabis legal experts agree delta 8 THC is legal on a federal level in the United States and Canada. However, there’s always a possibility the DEA or other regulators will interpret the wording differently or amend the law to make delta 8 THC more explicitly illegal. 

Why Delta 8 Laws Are So Confusing

The 2018 Farm Bill lists any hemp-derived product as legal as long as the total delta 9 THC content remains below a threshold of 0.3%.

Delta 8 THC is not mentioned anywhere in the bill, nor is it listed on the restricted substances list.

This makes it seem like delta 8 THC is excluded from the list and is, by default, legal.

A report was published in the United States Federal Register in 2020 that was intended to add clarity for cannabinoids like delta 8 — but only made things less clear.

The statement clarified that “for synthetically derived tetrahydrocannabinols, the concentration of Δ9-THC is not a determining factor in whether the material is a controlled substance. All synthetically derived tetrahydrocannabinols remain Schedule I controlled substances.”

So the question is this — “is delta 8 THC considered “synthetically-derived?”

Is Delta 8 THC Synthetically Derived? ?

You could argue either way:

  1. Synthetically-derived: Delta 8 THC is made using synthetic reactions with strong acids
  2. Naturally-derived: Delta 8 THC occurs in nature and is made by converting other naturally occurring compounds (such as CBD)

The reaction chemists are using to convert CBD into delta 8 THC isn’t exactly “natural” (that is, unless you consider dumping highly refined CBD isolate into lab-grade hydrochloric acid and toluene “natural.”

While it’s not “natural,” it may not be synthetic either.

The way the DEA regulates different substances usually has very little to do with how it’s made. It has more to do with whether or not it’s found in nature and whether or not the substance has medicinal value.

Delta 8 THC is technically found in nature — albeit in very low concentrations.

The argument is that the current manufacturing methods used to convert one naturally-occurring hemp derivative (CBD) into a different naturally-occurring hemp derivative (delta 8 THC) doesn’t make it a synthetically derived version of THC.

What the DEA is more likely referring to with regards to “synthetically-derived THC” are the other non-natural synthetic forms of THC — such as spice or K2. 

Synthetic THC was legal in the early 2000s, which led to a booming industry of grey-market “legal highs” sold under street names like spice or K2. Many of these compounds were untested, and there have been dozens of reports of people experiencing severe mental or physical harm as a result. There were even a few deaths reported.

The law was adapted to cover these compounds and stop the rapidly developing epidemic of special K users experiencing overdoses.

Delta 8 THC is not a synthetic version of THC in the sense that it’s found naturally in both hemp and marijuana. Therefore, it’s most likely the DEA is NOT referring to delta 8, delta 10, or any other form of naturally-occurring THC as “synthetically-derived tetrahydrocannabinol.”

This same argument can be made for other countries that have followed the same wording used in the US hemp bill — such as Canada. 

Why Delta 8 THC Could Be Illegal

There’s also an argument that could be made in the opposite direction — that it’s illegal in the eyes of the DEA.

Technically speaking, delta 8 THC is a synthetically derived compound because it’s created using unnatural processes. You’re not going to find the hemp plant mixing up hydrochloric acid or pTSA and refluxing it for 20+ hours to convert the CBD into delta 8. This is something that only happens because of human intervention.

CBD does not naturally convert into delta 8 THC — only delta 9 THC will convert to delta 8 THC “naturally” when exposed to the right conditions.

Exposure to oxygen, heat, and UV radiation will cause delta 9 to break down into either delta 8 THC (the more stable form) or CBN (cannabinol). This process takes a long time, it’s very inefficient, and it only produces trace amounts of delta 8 THC.

Some companies are “aging” marijuana flower under conditions that facilitate this conversion, which allows them to extract and concentrate the delta 8 THC “naturally” — however, the yields are very low, and these products would be considered illegal in any country or state that doesn’t allow the sale of marijuana recreationally or with specific licenses.

Is Delta 8 THC “Natural?”

When most people hear the word “natural,” they think of a substance that’s found in nature. Something that’s created on its own without human intervention.

From a regulatory perspective, the word “natural” doesn’t actually mean anything. When a company says something is “all natural,” none of the ingredients actually need to be extracted from plant or animal sources. They can be made in a lab and still be referred to as natural.

This is why it’s very likely the DEA and other regulators don’t consider delta 8 “synthetic” even though commercial preparations are made in a lab.

There are also a few states that have specifically banned the sale and possession of delta 8 THC — including Alaska, Arizona, Arkansas, Delaware, Idaho, Iowa, Montana, Pennsylvania, and Utah. Other states are less clear or default in the federal regulations due to lack of any specific legislation.

Here’s a breakdown of the legality of delta 8 THC, delta 9 THC, and hemp-derived products in the United States for each state:

StateΔ8 THCΔ9 THCCBD (Hemp)
Alabama      🚫 Banned
Alaska     🚫 Banned
Arizona      🚫 Banned
Arkansas      🚫 Banned💊 Medical Only
California     
Colorado      
Connecticut      💊 Medical Only
Delaware      🚫 Banned💊 Medical Only
Florida      💊 Medical Only
Georgia      💊 Medical Only
Hawaii      💊 Medical Only
Idaho      🚫 Banned🚫 Banned
Illinois      
Indiana    🚫 Banned
Iowa      🚫 Banned💊 Medical Only
Kansas      🚫 Banned
Kentucky      🚫 Banned
Louisiana      💊 Medical Only
Maine      
Maryland      💊 Medical Only
Massachusetts      
Michigan      
Minnesota      💊 Medical Only
Mississippi      🚫 Banned💊 Medical Only
Missouri      💊 Medical Only
Montana      🚫 Banned
Nebraska      🚫 Banned🚫 Banned🚫 Banned
Nevada      
New Hampshire      💊 Medical Only
New Jersey      
New Mexico      💊 Medical Only
New York     
North Carolina      🚫 Banned
North Dakota      💊 Medical Only
Ohio      💊 Medical Only
Oklahoma      💊 Medical Only
Oregon      
Pennsylvania      💊 Medical Only
Rhode Island      🚫 Banned💊 Medical Only
South Carolina      🚫 Banned
South Dakota      
Tennessee      🚫 Banned
Texas      🚫 Banned
Utah      🚫 Banned💊 Medical Only
Vermont      
Virginia      💊 Medical Only
Washington      
West Virginia      💊 Medical Only
Wisconsin      🚫 Banned
Wyoming🚫 Banned
Guam
Puerto Rico              💊 Medical Only
Virgin Islands💊 Medical Only
Washington DC

Alabama

Delta 8 THC is legal in Alabama.

Alabama has strict marijuana laws — if caught with a high delta 9 THC product, you’ll lose your driver’s license for six months. Delta 8 THC is legal as per the federal regulations, but make sure you carry the label of your delta 8 THC products with you to prove it’s delta 9 THC-free.

Alaska

Delta 8 THC is not legal in the state of Alaska.

Alaska is one of the few states that allow marijuana recreationally — which means anybody over the age of 21 can buy and use marijuana products. Unfortunately, this state has a specific ban on delta 8 THC, which they implemented in 2018 when marijuana was still illegal. They have yet to overturn this (now outdated) ban to conform with current marijuana policies.

Arizona

Delta 8 THC is not legal in the state of Arizona.

Recently, Arizona passed a bill that allows the use of marijuana recreationally — so the delta 8 laws are now outdated. We expect to see this law overturned in the near future to conform with the current marijuana policy.

Arkansas

Delta 8 THC is illegal in the state of Arkansas.

Marijuana is only legal with a medical license, but these are difficult to obtain in this state. Arkansas has had a very conservative stance on marijuana, so it’s unlikely delta 8 THC will be legal unless laws are changed at the federal level.

California

Delta 8 THC is legal in California.

California cannabis laws are very relaxed. Both the delta 8 and delta 9 THC isomers are completely legal in the state of California. This includes delta 8 THC made from marijuana rather than hemp.

Colorado

Delta 8 THC is legal (grey area) in the state of Colorado.

Many resources online state that delta 8 THC is illegal in Colorado. However, none of the wording included in Senate Bill 14-184 — which was the states responsive to the 2018 Farm Bill — suggests delta 8 THC is banned.

Colorado follows the same ruling — stating that any synthetically-derived THC is illegal — but as we’ve outlined above, this refers to synthetic forms of THC such as K2 or Spice rather than naturally-occurring cannabinoids like delta 8.

Connecticut

Delta 8 THC is legal in the state of Connecticut.

Marijuana was recently decriminalized in this state, which means that while it’s illegal, the punishments are minor. Delta 8 THC products are legal in this state as long as they’re derived from hemp and don’t have a delta 9 THC content any higher than 0.3%.

Delaware

Delta 8 THC is illegal in the state of Delaware.

Delaware recently decriminalized marijuana. However, all forms of tetrahydrocannabinol are still considered illegal in Delaware — including delta 8, 9, and 10 — regardless of its origin.

Florida

Delta 8 THC is legal in the state of Florida.

Only delta 9 THC is specifically banned in this state — all other isomers of THC are considered legal. This includes both delta 8 and delta 10 THC.

Georgia

Delta 8 THC is legal in the state of Georgia.

Georgia follows the same ruling as the federal government — allowing the sale of delta 8 THC products as long as they’re made from hemp and contain no more than 0.3% of the delta 9 THC isomer.

With a valid medical license, the limit is increased to 5% delta 9 THC.

Hawaii

Delta 8 THC is legal on the islands of Hawaii.

Marijuana is decriminalized in Hawaii, and all products derived from hemp (including delta 8 THC) are considered legal. Delta 10 THC is also legal here, and there are a few companies based out of Hawaii that specialize in these unique isomers of THC.

Idaho

THC is not legal in the state of Idaho.

Idaho is probably the strictest state when it comes to cannabis products. Even as all their neighboring states adopt more relaxed cannabis laws, Idaho has yet to update its legislation to match. All forms of tetrahydrocannabinol are illegal in the state of Idaho — including delta 8 THC.

Illinois

Delta 8 THC is legal in the state of Illinois.

Both medical and recreational cannabis is legal in this state. Delta 8 THC made from both hemp and marijuana are legal, but you can only buy the hemp-derived versions online. Marijuana-derived delta 8 products can only be bought in-store in the state of Illinois.

Indiana

Delta 8 THC is legal in Indiana.

Indiana is one of the few states to maintain old prohibition laws on cannabis. Possession of marijuana or products that contain delta 9 THC will earn you a misdemeanor.

Delta 8 THC is legal only because the state doesn’t list any mention of this cannabinoid, nor do they use language that makes all forms of tetrahydrocannabinol illegal. Only hemp-derived delta 8 THC is legal in this state.

Iowa

Delta 8 THC is legal in Iowa.

Iowa follows the same regulations put in place by the federal government. Delta 8 THC is legal as long as it’s made from hemp and contains no more than 0.3% of the delta 9 THC isomer.

Kansas

Delta 8 THC is legal in Kansas.

There are specific laws that list the possession of delta 9 THC products as a misdemeanor — however, there is no mention of delta 8 or delta 10 THC.

Be cautious when using delta 8 THC in the state of Kansas. This cannabinoid is caught in a legal grey area, and it’s difficult to tell the difference between products that use delta 9 THC and delta 8 THC without a lab test.

Kentucky

Delta 8 THC is legal in the state of Kentucky as long as it’s made from hemp.

A large percentage of American-grown hemp comes from this state, and regulators have been working to reduce friction with these farmers and producers to bring more income to the state. As a result, the laws regulating the manufacture and possession of delta 8 or other cannabinoids are fairly relaxed and rarely enforced.

The large amount of hemp biomass makes Kentucky a perfect place to make delta 8 products. Hemp is cheap and readily available to convert into delta 8 THC legally.

Louisiana

Delta 8 THC is legal in the state of Louisiana.

This state is very strict on delta 9 THC products but doesn’t mention delta 8. It’s likely that delta 8 products are legal, but there’s some room for interpretation here. Due to the history of being strict for marijuana possession charges, it’s possible Louisiana prosecutors could try and charge someone with a marijuana possession charge if they’re caught using delta 8 THC concentrates. Always keep the packaging or label with you if you buy delta 8 products in Louisiana.

Maine

Delta 8 THC is legal in Maine, along with all forms of marijuana and hemp.

This is one of the friendlier states in terms of cannabis laws. They have both recreational and medical marijuana programs, and there are several delta 8 THC manufacturers operating within this state legally.

Maryland

Delta 8 THC is legal in Maryland.

This state recently decriminalized the possession of small amounts of marijuana — however, concentrated cannabis extracts are still considered illegal.

Delta 8 THC is legal, but be cautious about ordering concentrates in this state. It’s difficult to tell the difference between a delta 8 concentrate from a delta 9 concentrate. Stick to tinctures, gummies, or capsules to be extra safe if you live in Maryland.

Massachusetts

Delta 8 THC is legal in the state of Massachusetts.

This is one of the legal marijuana states. You can order all forms of THC in this state, including the delta 8 THC isomer.

Michigan

Delta 8 THC is legal in Michigan (sort of).

This state recently joined the ranks of legal marijuana states. However, there are some contradictory laws that need to be ironed out before we can conclusively state that delta 8 THC is legal.

Marijuana and its derivatives are now considered legal in Michigan, but delta 8 is specifically banned on another bill. This outdated ruling is likely to be overturned in the near future to comply with the most recent move to legalize marijuana.

Minnesota

Delta 8 THC is legal in Minnesota.

Like many other US states, it isn’t explicitly legal — rather, it’s considered legal by way of not being explicitly illegal.

Hemp-derived delta 8 THC is legal throughout the state, and marijuana-derived delta 8 THC is legal among people who have a medical license. It’s relatively easy to get into the medical program in this state compared to other US states.

Mississippi

Delta 8 THC is illegal in the state of Mississippi.

Mississippi bans all forms of THC — including both natural and synthetic forms. You can only buy hemp-derived products that contain less than 0.3% THC (of any kind).

Missouri

Delta 8 THC is illegal in Missouri.

Marijuana is decriminalized in this state — but that doesn’t mean it’s legal.

With that said, you can order delta 8 THC products online as long as they’re made from hemp-derived cannabinoids like CBD and contain no more than 0.3% delta 9 THC by weight.

Montana

Delta 8 THC is legal in the state of Montana.

Initiative 190 (passed the 1st of January 2021) legalized marijuana and all its constituents (including delta 8 THC). You can order delta 8 made from both hemp and marijuana products if you live in the state of Montana.

Nebraska

The regulation of delta 8 THC is not clear in the state of Nebraska.

Bill 657 describes any hemp-derived product as considered legal — so long as the delta 9 THC content is below federal limits.

However, a separate bill places all versions of tetrahydrocannabinol (including delta 8) as a Schedule I drug.

This law is contradictory to newer laws, but until it’s ironed out and one or both laws are amended to comply with each other, we can’t definitely place delta 8 into either the legal or illegal category.

Nevada

Delta 8 THC, along with all THC isomers, are legal in the state of Nevada.

Marijuana and its derivatives were made legal in Nevada in June of 2020.

New Hampshire

Delta 8 THC is legal in New Hampshire.

You can order delta 8 products derived from hemp legally, but marijuana-derived delta 8 is illegal (decriminalized). If caught in possession of delta 8 THC products that contain more than 0.3% THC, you won’t receive a jail sentence but may end up with minor penalties such as a ticket or confiscation of your product.

New Jersey

Delta 8 THC is legal in New Jersey.

New Jersey follows the same policy put in place by the federal government. This means delta 8 THC is legal as long as it comes from hemp-derived cannabinoids like CBD. Any products containing more than 0.4% delta 9 THC are considered illegal.

New Mexico

Delta 8 THC is legal in the state of New Mexico.

Products that have higher than 0.3% delta 9 THC have been decriminalized. This means there are no mandatory jail sentences for offenders.

With that said, make sure you order products derived from hemp to avoid running into problems with the law if you live in New Mexico.

New York

Delta 8 THC is legal in the state of New York — along with all isomers of THC.

New York is the most recent state to legalize marijuana. They’re the 15th state to have made this move, which eliminates all marijuana-derivatives (including delta 8 THC) from the list of restricted substances.

North Carolina

Delta 8 THC is legal in North Carolina.

This state recently decriminalized possession of delta 9 THC products. There is no mention of delta 8 THC on any of the state’s official documents.

While you’re unlikely to run into trouble with any form of delta 8 THC in this state, it’s recommended you look for hemp-derived products only to avoid any issues.

North Dakota

Delta 8 THC is legal in North Dakota.

This state doesn’t have recreational cannabis laws and has been very strict with how they regulate cannabis in the past.

Recently, marijuana and its constituents were decriminalized in the state — however, anything more than the equivalent of 14 grams is considered a criminal offense. It doesn’t take much concentrate to exceed the 14 gram (equivalent) limit — so it’s recommended you stick to hemp-derived delta 8 THC only if you live or are traveling to this state.

Ohio

Delta 8 THC is legal in the state of Ohio.

Only patients with a medical license can order marijuana-derived delta 8, but anybody in can order hemp-0derived delta 8 products as long as they adhere to the federal limits for the delta 9 isomer.

Oklahoma

Delta 8 THC is legal in Oklahoma.

This state is strict on marijuana use, and there have been reports of people running into trouble for being in possession of delta 8 distillates until they can prove the contents are free from delta 9 THC.

Be cautious about ordering delta 8 THC products if you live in this state.

Oregon

All forms of THC are legal in the state of Oregon, including delta 8 THC.

This state has always been relaxed when it comes to the regulation and control of marijuana. They were the first state to decriminalize marijuana (1973) and one of the first states to form recreational laws allowing anybody over the age of 21 to use the plant and its extracts for non-medical purposes.

Needless to say, delta 8 THC is considered legal regardless of its origin in the state of Oregon.

Pennsylvania

Delta 8 THC is legal in Pennsylvania.

This state follows the same regulations as the federal government — which means only delta 8 THC products that are derived from CBD or other hemp-derived cannabinoids are considered legal.

Rhode Island

The regulations for delta 8 THC are unclear in the state of Rhode Island — but several prominent cannabis lawyers in the states have suggested it’s probably illegal here.

South Carolina

Delta 8 THC is legal in South Carolina.

This cannabinoid is not explicitly listed as illegal or legal. The fact that delta 9 THC is specifically banned, with no mention for other versions of tetrahydrocannabinol, it’s likely that delta 8 THC is legal within this state if it’s made from hemp.

South Dakota

Delta 8 THC is legal in South Dakota.

Only people with an approved medical license can order marijuana-derived delta 8 THC extracts. Everybody else will need to go for a hemp-derived version. There’s very little difference between a hemp-derived and marijuana-derived delta 8 THC extract aside from having slightly different ratios of delta 8 to delta 9.

Tennessee

Delta 8 THC is legal in Tennessee.

Tennessee has been very strict on the possession or consumption of cannabis but has not directly opposed the laws imposed by the federal US government. As a result, delta 8 THC is legal as long as it’s made from hemp-derivatives and lacks the delta 9 isomer (0.3% limit).

Texas

Delta 8 THC is legal in Texas if made from hemp.

This state has been ramping up for full legalization, so we expect to see both marijuana and hemp-derived delta 8 products in this state in the near future. They’ve even opened up on their psychedelics laws with their move to decriminalize psilocybin in several municipalities, including Austin, San Antonio, Dallas, and Travis County. These same municipalities also passed a “cite and release” law that makes police officers unable to arrest anybody on marijuana charges.

Utah

Delta 8 THC is not legal in Utah.

Like some of the other banned states, Utah specifically lists any version of tetrahydrocannabinol as illegal — not just the delta 9 isomer.

Vermont

All forms of THC are legal in the state of Vermont.

The legal limit is the equivalent of 28 grams of flower — but you can order delta 8 THC products from both marijuana and hemp origins.

Virginia

Delta 8 THC is legal in Virginia.

Only hemp-derived delta 8 is considered legal unless you obtain a medical license. Even with a medical license, products must contain no more than 5% delta 9 THC.

Washington

Delta 8 THC is legal in Washington state.

All forms of cannabis, including marijuana, have been legal in Washington since 2012. This was one of the first states to pass recreational cannabis laws. Any and all marijuana derivatives are considered legal in this state.

West Virginia

West Virginia considers any delta 8 product made from hemp legal.

This state has yet to update its marijuana laws. They’re following the same regulations put in place by the federal US government. This means all products must contain less than 0.4% of the delta 9 isomer unless registered in the state’s medical program.

Wisconsin

Wisconsin considers hemp-derived delta 8 products legal.

Only medical patients have access to marijuana-derived delta 8. However, CBD-derived D8 is considered legal in the state.

Wyoming

Delta 8 THC is legal in the state of Wyoming.

This state has been slow in updating its cannabis laws. At the moment, they follow the same restrictions imposed by the federal government. Only delta 8 THC from hemp is legal. Delta 9 THC is strictly regulated.

Delta 8 THC is legal in Canada in all forms. However, it’s not as popular here as it is in the states and can be fairly difficult to find. 

Canada legalized all forms of Cannabis in 2018. With this change, the federal government was able to take control of the market. All cannabis products, regardless of the source (hemp or marijuana), are very strictly regulated.  This means it’s relatively difficult for companies to operate here and remain profitable.

If you’re looking for delta 8 products in Canada, check out companies such as Flashbuds or Haute Health Cannabis.

Delta 8 THC is illegal in the United Kingdom.

Marijuana is considered a Class B drug in the UK — which includes such drugs as amphetamines, ketamine, and codeine.

These extracts of marijuana, including all forms of naturally occurring and synthetic THC are included. This means delta 8 THC is illegal in the United Kingdom, even if it’s derived from hemp.

Local reports suggest these laws aren’t enforced, but there’s always a risk of running into trouble. Order delta 8 THC at your own risk if you live in the UK. 

In Australia, delta 8 is illegal unless specific medical approval is granted.

Australia regulates all tetrahydrocannabinols under the same bill. THC is considered a Schedule 8 drug according to the Therapeutic Goods Administration (TGA). Schedule 8 substances are those which the TGA believes have a high level of risk but provide some medicinal value. This is the same classification used for most prescription opiate medications.

The exception is the Australian Capital Territory — which moved to decriminalize marijuana and its derivatives in 2019.

What’s the Future of Delta 8 THC? Will Delta 8 THC Become Illegal?

Delta 8 THC is stuck in a bit of a grey area. While we’ve known about delta 8 THC since the early 80s, it’s only become popular in the last couple of years. The main reason for using it is because it’s considered “legal” in places where other psychoactive cannabis extracts are banned. This is open for interpretation — but most legal experts in this space believe delta 8 THC is indeed legal.

The other main reason people use delta 8 THC is that it’s much more calming and relaxing than the delta 9 isomer and is, therefore, better for promoting sleep, alleviating stress and anxiety, and it’s less likely to produce anxiety-related side effects.

Early studies also suggest delta 8 THC is better for increasing hunger levels and reducing nausea or vomiting.

As the popularity of delta 8 THC continues to grow, we’ll likely see further clarification on the legality of this substance from regulators like the DEA, FDA, TGA, Health Canada, and other governmental agencies.

The most likely outcome is that these laws will be favorable for this naturally occurring cannabinoid — but there’s always the possibility they’ll be more restrictive.

Overall, regulations are trending towards becoming lighter in regards to cannabis as more countries and individual states move to legalize all cannabis products — including marijuana and its psychoactive cannabinoids.

Further Reading

Further Reading