Updated: Delta-8 legality map

Updated: January 1, 2022

Delta-8 is currently banned or restricted in 20 states and is under review in more

Delta-8 has become a new commodity quickly, and with that rising popularity comes a new scope of scrutiny. Greenway has created a map highlighting the states Delta-8 is currently banned or restricted in, as well as states exploring bans at this time.

Delta-8 is a naturally occurring cannabinoid and derived from hemp is legalized in the 2018 Farm Bill, as such it is not prohibited under federal law. But almost all Delta-8 products on the market are processed and are not directly extracted. Delta-8 is converted from CBD, that process and the intoxicating and psychoactive side effects of Delta-8 have drawn the ire of many regulating bodies and legislators.

On October 15, the Texas Department of State Health Services posted an update on their Consumable Hemp Program page saying, “Texas Health and Safety Code Chapter 443 (HSC 443), established by House Bill 1325 (86th Legislature), allows Consumable Hemp Products in Texas that do not exceed 0.3% Delta-9 tetrahydrocannabinol (THC).  All other forms of THC, including Delta-8 in any concentration and Delta-9 exceeding 0.3%, are considered Schedule I controlled substances.”

It’s also important to note that Leafly recently reported, “Andrea Golan, an associate attorney of Vicente Sederberg points out that the Federal Analogue Act—passed in 1986 and meant to combat synthetically-made “designer drugs”—holds that any drugs that are similar in chemical structure, and that have a similar (actual or intended) effect similar or greater to a that of a controlled substance, and are intended for human consumption, must be treated as a Schedule I or Schedule II controlled substance.”

Currently, Delta-8 is banned or sales restricted in Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Kansas, Kentucky, Idaho, Iowa, Michigan, Mississippi, Montana, Nevada, New York, North Dakota, Rhode Island, Utah, Vermont, and Washington.

New York banned Delta-8 when language restricting the production of the compound was added in updated hemp regulations which state, “Section 1005.7 Requirements for Cannabinoid Hemp Processors (a) All cannabinoid hemp processors shall: … (11) not use synthetic cannabinoids, or Δ8-tetrahydrocannabinol or Δ10-tetrahydrocannabinol created through isomerization, in the extraction or manufacturing of any cannabinoid hemp
products.”

In June, Connecticut announced that only licensed marijuana businesses will be allowed to sell Delta-8 products. Similarly, Michigan’s restriction of Delta-8 sales and production treats the compound in a similar fashion to the state’s existing marijuana products.

Legislative bans and regulatory clarifications are currently being considered in other states including Alabama, Illinois, and Oklahoma.

In Oregon, HB 3000 did not ban Delta-8 THC, but it sets a new precedent under which hemp-derived products and marijuana products are now both considered adult use items.

Products with 0.5 milligrams of Delta-8 THC, or any other products containing “intoxicating cannabinoids” or “artificially derived cannabinoids” are considered Adult Use Cannabis Items.

   

While HB 3000 does not provide restrict sales of these items at this time, aside from an age restriction of 21+, the law does grant authority to the Oregon Liquor Control Commission (OLCC). In January of 2022, the OLCC, ODA, and the Oregon Health Authority (OHA) will set new potency and concentration limits for THC and other cannabis intoxicants in hemp products intended for sale to adults. The legislation also requires establishing tracking requirements for cannabinoid hemp commodities and products intended for human consumption, similar to tracking cannabis products sold in the OLCC regulated recreational or adult-use market. All of this points to the eventual implementation of a requirement that stores selling Adult Use Cannabis Items hold a license.

On October 15, the Texas Department of State Health Services posted an update on their Consumable Hemp Program page saying, “Texas Health and Safety Code Chapter 443 (HSC 443), established by House Bill 1325 (86th Legislature), allows Consumable Hemp Products in Texas that do not exceed 0.3% Delta-9 tetrahydrocannabinol (THC).  All other forms of THC, including Delta-8 in any concentration and Delta-9 exceeding 0.3%, are considered Schedule I controlled substances.”

That decision has been challenged and a preliminary injunction in Texas holds Delta 8 in a legal gray area, as it remains legal – but with an asterisk, making it a risky investment for retailers.

In Missouri, state regulators proposed a ban on the sale of any product created containing cannabinoids created through chemical conversion of other compounds in dispensaries. That language was strongly objected to by the Missouri Hemp Trade association. To this point, that ban has not been finalized.

More recently, in December, Derek Schmidt, Kansas Attorney General, wrote an official opinion declaring, “Delta-8 THC comes within the definition of a Schedule I controlled substance and is unlawful to possess or sell in Kansas unless it is made from industrial hemp and is contained in a lawful hemp product having no more than 0.3% total tetrahydrocannabinols (THC). Unlawful hemp products include cigarettes, cigars, teas, and substances for use in vaping devices. Delta-8 THC derived from any source other than industrial hemp is a Schedule I controlled substance and unlawful to possess or sell in Kansas. Other federal and state laws and regulations place additional limits on the legality of products containing THC and other cannabinoids.”

Important to note is that Kansas law does not differentiate between forms of THC such as Delta-8, Delta- 9, or Delta-10, as such, the limit of 0.3% applies to the total amount of all THC in a final hemp product, including Delta-8, Delta-9, and all other tetrahydrocannabinol. This distinction combined with Schmidt’s formal opinion effectively bans Delta-8 products in the state.

Texas, as previously mentioned, lies somewhere in between as we await a decision from the state’s Supreme Court.