Are Delta 8 Products Legal In Your State?

Last week we talked about HHC laws across the fifty states.  This week, delta 8 actually made the news in Tennessee due to some recently proposed legislation (read on to find out more!), so I thought it would be a perfect time to discuss the legality of delta 8 products in the US.

Like HHC, delta 8 only became a star on the scene as a result of the 2018 Farm Bill.  This bill declared hemp legal on a federal level.  Hemp is really just cannabis that contains less than .3% delta 9 THC.  While hemp is low in delta 9 THC, it’s still generally pretty high in CBD.  Delta 8 occurs naturally in very small amounts, which is why you haven’t heard about it until recent years.  Hemp-derived CBD can actually be converted into delta 8, hence its rise in popularity.  While I’m sure the intentions of the 2018 Farm Bill were mainly so that hemp could be used to produce things like clothing, rope, and food, this bill has inadvertently given us more ways to get high than ever before.  State legislators are definitely catching on though, and not all of them support this new innovation.

Just like HHC, the legality of delta 8 products is not super straightforward.  While they’re legal in more states than not, the laws are ever changing and many states have their own unique restrictions.  Let’s start with the most straightforward of the legal states.

Legal States

Delta 8 is legal in: 

• Alabama 
• Arkansas 
• Florida 
• Georgia 
• Illinois 
• Indiana 
• Kansas
• Kentucky 
• Maine 
• Massachusetts 
• Missouri 
• Nebraska 
• New Hampshire 
• New Jersey 
• New Mexico 
• North Carolina 
• Ohio 
• Oklahoma 
• Pennsylvania 
• South Carolina 
• Tennessee 
• Texas 
• Virginia 
• Washington DC 
• West Virginia 
• Wisconsin 
• Wyoming 

Some of these states only allow hemp-derived delta 8 and have banned or penalized delta 8 products made from cannabis.  These states include Arkansas, Florida, Georgia, Indiana, Kansas, Missouri, Nebraska, New Hampshire, North Carolina, Ohio (which does allow cannabis-derived delta 8 products for medical patients); Oklahoma, South Carolina, West Virginia, Wisconsin, and Wyoming.

Other states have legalized delta 8 whether it comes from hemp or cannabis.  These states are Maine, New Jersey, New Mexico, and Virginia.

Attempts to Ban

Still other states in the legal category had to fight for their right to keep delta 8 products legal.  Alabama’s 2019 Senate Bill 225 legalized hemp and hemp-derived compounds.  Twice, this has been challenged: In 2021, House Bill 2 attempted to ban both delta 8 and delta 10 by adding them to their list of controlled substances.  In 2022, Senate Bill 144 was introduced which tried to ban delta 8 along with other psychoactive hemp derivatives.  Luckily for Alabama, both of these bills failed to pass and delta 8 remains legal.

Though delta 8 products are legal in Illinois, the state has tried to regulate them, an attempt which passed in the Senate but failed in the House.  The Illinois Department of Agriculture released a policy statement banning producers from chemically synthesizing delta 8 from CBD… but unfortunately for this department, their statement isn’t actually legally binding so delta 8 products are still legally permitted in Illinois. 

Indiana did their best to ban delta 8 in 2022 with Senate Bill 209, but this did not go through.  In the same vein as Illinois, the Attorney General of Kansas penned an opinion piece which declared delta 8 to be “unlawful”… but opinion pieces and laws are two very different things, and the people of Kansas can still enjoy delta 8 products.

Like others, the Massachusetts government website claims delta 8 is a controlled substance, but these words aren’t legally binding and delta 8 is good to go in the Bay State.  Pennsylvania actually legalized delta 8 in 2016 (two whole years before the Farm Bill) with House Bill 967; unfortunately, senators are proposing a ban in present day, so we’ll see what the future holds for delta 8 products in Pennsylvania.  South Carolina’s Attorney General did his best to ban delta 8 by saying that delta 8 products are not permitted in his state, but his declaration is not law so delta 8 remains legal.

Attempts to Regulate

At last, we get to Tennessee the most recent state to make the news regarding d8.  In 2019, Senate Bill 279 legalized hemp and its derivatives.  In January 2022, House Bill 1927 was proposed to ban delta 8.  This bill failed, but just last week a new bill has been proposed.  This bill would require anyone purchasing or possessing delta 8 to be 21+, and would regulate the products and packaging.  Businesses would need to be licensed to sell, and most interesting of all, the bill would prohibit any delta 8 packaging or products featuring animals or cartoon characters in a bid to keep delta 8 away from children.  It’s a brand new bill, but it will be one to watch for anyone in Tennessee, plus it could potentially inspire other states to make similar amendments.

The last legal state to experience backlash on delta 8 products is West Virginia.  Appropriately numbered Senate Bill 666 tried to restrict and regulate delta 8 while also defining it as a controlled substance.  This bill ultimately failed, and West Virginia is free to enjoy delta 8 as they please.

Temporarily Legal

Now Kentucky and Texas are very intriguing as delta 8 is technically only temporarily legal in these two states.  In 2021, the Kentucky Department of Agriculture released a memo claiming that both hemp and cannabis derived delta 8 were controlled substances and illegal under federal law.  This resulted in the raids of many shops that sold delta 8 products.  That’s when the Kentucky Hemp Association sued the state and requested a temporary injunction.  The judge ruled in favor of the KHA, and in February of 2022, the state officially, but temporarily, legalized delta 8.  A new bill was proposed to Senate later that same month which tried once more for a ban, but despite Kentucky’s best efforts, this bill died in its early stages.

Texas tried and failed to ban delta 8 in September of 2022.  The following month, the Texas Department State Health Service asserted on its website that delta 8 was an illegal, controlled substance and banned in the state.  An Austin delta 8 vendor sued, and like Kentucky, Texas was granted a temporary injunction regarding delta 8.  It’s unclear when or if these grants expire, but great news for both of these states in the present day.

Legal With Restrictions

Now we move on to states where delta 8 products are legal with restrictions; some of which are so intense that delta 8 can really only be considered “barely legal”.  The States in which delta 8 products are legal with restrictions are:

• California
• Connecticut
• Hawaii
• Louisiana
• Maryland
• Michigan
• Minnesota
• Nevada
• Oregon
• Utah

California law declares that no hemp products may contain more than .3% of delta 8 THC; however, the Golden State allows the purchase of up to an ounce of cannabis-derived delta 8 from licensed dispensaries.  Connecticut permits delta 8 to be sold only from licensed dispensaries.  Hawaii has banned all smokable and edible hemp products, but they do allow tinctures, tablets, capsules, powders, and topicals.  Similarly, Louisiana has banned inhalable delta 8 products.

Maryland simply requires that consumers be 21+.  Michigan has this same age requirement while also declaring that only state licensed companies can sell, distribute, and manufacture delta 8 according to House Bill 4517.  Minnesota gets tricky with their rules that edible hemp products must contain no more than 5 mg or less per serving, and all other products may only contain up to .3% delta 8, delta 9, delta 10, or HHC and you have to be twenty-one or older to purchase/possess.

Nevada requires vendors to be licensed by the Nevada Cannabis Compliance board, while Oregon’s delta 8 scene is regulated by the Oregon Liquor and Cannabis Commission (while also limiting sale to the 21+ crowd).  Utah only allows medical marijuana patients with certain conditions to purchase delta 8, and these products must be licensed by the state’s department of health.

Illegal

The last states I’m going to mention have 100% banned delta 8 products.  Some of these states may not enforce this ban, but you’d have to be there to really know for sure.  

Delta 8 products are illegal in:

• Alaska 
• Arizona 
• Colorado 
• Delaware 
• Idaho 
• Iowa 
• Mississippi 
• Montana 
• New York 
• North Dakota 
• Rhode Island 
• Vermont
• Washington

Vermont’s House Bill 548 wants to regulate delta 8 products under their existing marijuana laws, but this hasn’t passed just yet. To sum it all up, delta 8 laws are both ever-changing and ever confusing.  Many of these rules and regulations could change at any time, for better or for worse.  If you live in a delta 8 approved state, stock up on our prerolls or blunts and enjoy the experience that has our nation’s lawmakers in such a frenzy.