Is Delta 8 Legal in your State? (2023) Delta 8 Laws

There are several arguments and ways states have restricted the manufacturing or sale of delta 8.  Understanding the validity of these arguments is crucial when determining if you should sell delta 8 at your local shop or even online.  State statutes are almost impossible to thoroughly understand because they reference other statutes that reference even more statutes, and so on.  Furthermore, state, and federal statutes and definitions can be conflicting.  Who has the authority, the state or the 2018 Farm Bill?  State websites are filled with outdated information as well as published “opinions” which may or may not be actual law.  Lastly, it’s important to understand the definitions of each statute as you are reading them.  Definitions may change in the same Bill or State Law and others may only be applicable to that particular statute, not the rest of the document.  Here are the common arguments used by several state agencies as well as incorrect arguments you may have found on the web in other articles.  Let’s debunk some of these myths before you go directly to your state’s delta 8 laws. 

1. Changing the definition of “THC” to include all THC cannabinoids. – This has been very effective in some states. Changing the definition of THC to include all THC cannabinoids such as delta 8 then limits the total of all THC cannabinoids to comply with the 2018 Farm Bill’s threshold of 0.3% THC. 

2. Setting product THC limits per serving and per package. – A handful of states have set total THC limits per serving and per package, most of which have also redefined THC to include all THC cannabinoids like Delta 8 THC. This, in and of itself, does not make delta 8 illegal but cripples the ability to make delta 8 products strong enough where anyone would buy them.  In my opinion, this tactic has been the most effective.

3. No synthetic or artificially derived (isomerization or converted from CBD) cannabinoids. – This is where it gets tricky. Delta 8 is a naturally occurring cannabinoid found in hemp.  However, it’s found in very small amounts.  To give you an idea how small, an average hemp plant has 10% CBD, 0.25% Delta 9 THC, and 0.03% Delta 8 THC.  Theoretically, delta 8 THC can be separated and extracted directly from the hemp.   However, that would take a lot of hemp and definitely wouldn’t support the amount of delta 8 products sold every day. 

More commonly, delta 8 distillate is created through a process of isomerization where CBD is converted into Delta 8 THC.  Isomerization combines CBD distillate or isolate with an acid, solvent, and heat to cause a chemical reaction which changes CBD into Delta 8 THC.   This process is actually very simple and safe.  The result is an identical twin molecularly of naturally occurring Delta 8 THC. 

So, how do you tell naturally extracted Delta 8 from CBD-converted Delta 8? 

And therein lies the problem.  You can’t.  Except to know that the amount needed for everyone to produce delta 8 products does not support the amount of delta 8 products being made and sold in the USA today.

The next issue you have with this type of argument is how the state defines “synthetic” or “artificially made”, which most of them don’t define it.  Synthetic cannabinoids refer to a class of cannabinoids that are not naturally occurring.  If you’ve ever heard of the “fake weed” that used to be sold in gas stations and head shops with brand names like “Spice” and “K2”, then you’ve heard of synthetic cannabinoids.  Synthetic cannabinoids should be banned.  But, in my opinion, delta 8 is not a synthetic cannabinoid. 

The term “artificially made cannabinoids” or “cannabinoids made through isomerization” are a whole different pickle to deal with.  Most delta 8 products today are made using Delta 8 distillate that was converted from CBD through isomerization.   The big problem is there’s no way to prove it. 

4. Delta 8 is a tetrahydrocannabinol which is a Schedule I drug. – This is correct but does not apply to hemp products. Over 30 states still have “tetrahydrocannabinols” listed as a Schedule I drug.  This does not apply to hemp products that contain less than 0.3% Delta 9 THC.

5. Product Restrictions that affect Delta 8 THC products. – Several states where delta 8 products are legal have banned certain product types such as hemp flower or inhalable hemp products like delta 8 vapes. Make sure you know these restrictions before you start selling delta 8 flower or delta 8 vape carts and disposable delta 8 vape pens in these states.

6. State agencies post notices that conflict with the written law. – There are several states that have posted announcements or official notices to either the public or other state agencies with their opinion on delta 8’s legality. Some of these notices are accurate.  Others conflict with their written state laws.  It’s important in these states to have an attorney look at this.  Whether or not their notices hold any legal authority is important.  What is more important to understand is the state’s view on it which, regardless of legal backing, shows their intent and can cause problems for you if the state decides to start pulling your products off the shelves of your resellers. 

7. Conflicting State and Federal Laws. – You will find, in every state, state laws that conflict with federal laws. This is a complicated subject and may differ from state to state depending on whether or not new legislature has passed within that state after the 2018 Farm Bill went into effect.  Any conflicting state laws prior to the 2018 Farm Bill are most likely trumped by the federal Farm Bill Statutes.  Any state laws passed after the farm bill may have precedent over it, especially if they have a USDA approved state hemp plan.   The best advice I’ve read, which I like to call “The Holy Grail” of hemp legal opinions is a 2019 Executive Summary of New Hemp Authorities Legal Opinion on Federal vs. State Hemp Laws by the USDA’s General Counsel (PDF).  I mean, why take legal advice from an online article when you get to hear it from the USDA’s General Counsel, which is basically a group of our countries best legal minds on the subject.  This document is 16 pages and a “must read” for anyone in the industry.  I thought I understood the law until I read this thing.  A truly humbling experience, I must say.  But it’s a great read. 

“The Holy Grail” of legal opinions about State vs. Federal Law regarding Hemp and the 2018 Farm Bill.

Executive Summary of New Hemp Authorities Legal Opinion on Federal vs. State Hemp Laws by the USDA’s General Counsel (PDF)