Where is Delta 8 Legal? (May 2024)

In the realm of cannabinoid experiences, Delta-8-THC has emerged as a beacon of euphoria, offering a unique journey for those seeking an alternative path to relaxation and bliss. However, as the popularity of Delta-8-THC continues to rise, so does the complexity of its legal status across the United States. A swirling debate surrounds this compound, with 21 states already imposing restrictions or outright bans on its distribution and consumption.

Delta-8-THC finds itself ensnared in a legal gray area that has left both consumers and producers perplexed. While the 2018 Farm Bill initially appeared to pave the way for the legality of all hemp and its derivatives, the lingering stance of the Drug Enforcement Administration (DEA) considers Delta-8-THC to be a controlled substance, casting doubt on its acceptance within the legal framework.

The landscape further evolved as the US Hemp Authority made a significant move by discontinuing the certification of Delta-8-THC products. This unexpected shift sent ripples throughout the industry, urging companies to reconsider their production practices and raising questions about the future of Delta-8-THC in the market.

Notable legal battles have also marked the journey of Delta-8-THC. The state of Texas, for instance, witnessed the lifting of its Delta-8 ban when a judge intervened to prevent its classification as a   controlled substance. Meanwhile, the most recent turn of events saw New York joining the ranks of states imposing restrictions on the manufacturing and sale of Delta-8 products, further contributing to the intricate legal tapestry.

Amidst these convoluted regulations, a glimmer of hope emerged in the form of a decisive legal verdict. On May 20, 2022, a U.S. Court of Appeals for the Ninth Circuit panel delivered a unanimous ruling, declaring Delta-8 products as legal entities and explicitly differentiating them from marijuana under the 2018 Farm Bill. This landmark decision has injected a new layer of interpretation into the debate, sparking discussions on potential shifts in the tides of Delta-8's legality. This blog aims to unravel the mysteries and contradictions that define Delta 8’s current status across the United States.

Which States Have Banned or Restricted Delta- 8?

1. Alaska
2. California
3. Colorado
4. Connecticut
5. Delaware
6. Idaho
7. Iowa
8. Louisiana
9. Maryland
10. Michigan
11. Minnesota
12. Montana
13. New York
14. Nevada
15. North Dakota
16. Oregon
17. Rhode Island
18. South Dakota
19. South Carolina
20. Utah
21. Vermont

Which States Have Allowed Delta-8?

1. Alabama
2. Arizona
3. Arkansas
4. Florida
5. Georgia
6. Hawaii
7. Illinois
8. Indiana
9. Kansas
10. Kentucky
11. Maine
12. Massachusetts
13. Mississippi
14. Missouri
15. Nebraska
16. New Hampshire
17. New Jersey
18. New Mexico
19. North Carolina
20. Ohio
21. Oklahoma
22. Pennsylvania
23. Tennessee
24. Texas
25. Virginia
26. Washington
27. Washington DC
28. West Virginia
29. Wisconsin
30. Wyoming

What is Delta-8-THC?

Delta-8 THC, or delta-8-tetrahydrocannabinol, is a naturally occurring cannabinoid found in cannabis plants, albeit in relatively low concentrations compared to its more well-known counterpart, delta-9 THC (tetrahydrocannabinol). Like delta-9 THC, delta-8 THC is psychoactive, meaning it can produce euphoric and intoxicating effects when consumed. However, the potency of these effects is generally considered to be milder than those associated with delta-9 THC.

Chemically, delta-8 THC and delta-9 THC are quite similar, differing in the arrangement of a double bond in their molecular structure. This subtle variation contributes to the differences in their psychoactive effects and potential medical applications. Delta-8 THC is known for producing a more clear-headed and less anxious high compared to delta-9 THC, making it appealing to individuals seeking a more relaxed experience without the intense mental effects often associated with traditional cannabis use.

Because delta-8 THC is found in such low concentrations in natural cannabis plants, it is typically produced through a process of extraction and isolation from hemp-derived CBD (cannabidiol) using various chemical reactions or technologies. This process allows manufacturers to create delta-8 THC products in higher concentrations for consumption.

However, as mentioned in the introduction, the legal status of delta-8 THC is complex and varies from state to state in the United States. While the 2018 Farm Bill legalized hemp and its derivatives, including cannabinoids like CBD, the legality of delta-8 THC remains contested due to its psychoactive nature and potential overlap with controlled substances laws. This has led to ongoing debates and legal battles in various states over whether delta-8 THC should be considered legal or subject to restrictions and bans.

The Restriction and Ban of Delta-8 THC Is An Outcome of Unclear Federal Guidelines

The current wave of restrictions and bans on delta-8 THC within several U.S. states is primarily driven by the complex and contradictory nature of federal guidelines. This intricate regulatory environment has pushed delta-8 THC into a legal gray area, where its status remains uncertain. The uncertainty surrounding the legality of delta-8 has given rise to questions about its consumption legality, its production's adherence to controlled substance regulations, and the legality of products being sold by vendors. These questions have remained ambiguous, and the concerns are both valid and ongoing.

Amidst the complexities, the Federal Analog Act, an integral component of the Controlled Substances Act established in the 1980s to counter synthetic “designer drugs,” has been somewhat overlooked.

The Federal Analog Act serves the purpose of identifying substances that closely resemble illicit drugs and designates them as controlled substances under Schedule I or Schedule II of the CSA.

Considering this context, it becomes plausible to consider that delta-8 THC, as a chemically analogous variant of federally prohibited delta-9 THC, might indeed qualify as a controlled substance under the provisions of the Federal Analog Act.

In 2018, the federal government, under the administration of President Trump, enacted the Agriculture Improvement Act, commonly known as the 2018 Farm Bill. This legislation legalized hemp  and all cannabinoids derived from hemp, removing hemp-derived “tetrahydrocannabinols” such as THCA, THCV, and delta-8 THC from the list of controlled substances. Notably, delta-9 THC remained classified as a controlled substance.

However, in 2020, the Drug Enforcement Administration (DEA) introduced an interim final rule that aimed to align the Farm Bill more closely with the Controlled Substances Act (CSA). This rule change posed challenges not only for delta-8 THC but also for delta-10 T HC.

Within this final rule, the DEA explicitly stated that “synthetically-derived tetrahydrocannabinols remain schedule I controlled substances.” This statement holds significance in the context of delta-8 THC due to its production process. Companies often create delta-8 THC by subjecting cannabidiol (CBD) to a structural isomerization process conducted under controlled laboratory conditions. This process modifies CBD's molecular structure to form delta-8 THC. Since this conversion involves chemical or biochemical synthesis rather than direct extraction from the hemp plant, the DEA classifies delta-8 THC as a synthetic substance.

5 Things the FDA Wants Consumers to Know About D8

The FDA recently gave guidelines on what consumers should know about delta-8-THC:

FDA Evaluation and Potential Health Risks

Delta-8 THC products have not undergone FDA evaluation or approval for safe use. This absence of scrutiny has given rise to concerns about public health risks. The FDA acknowledges the growing apprehension surrounding delta-8 THC products available online and in stores. These products lack FDA endorsement for safe consumption. Notably, some products may exhibit variations in formulations and labeling, diverse cannabinoid and terpene content, and inconsistent delta-8 THC concentrations. Adding to the uncertainty, certain products may be labeled as “hemp products,” potentially misleading consumers by erroneously associating “hemp” with “non-psychoactive.” Moreover, the FDA is alarmed by the proliferation of delta-8 THC-containing products marketed for therapeutic or medical purposes despite lacking FDA approval. Such marketing tactics not only breach federal law but also jeopardize consumers' safety, as the safety and efficacy of these products remain unsubstantiated. This unverified promotion of treatments raises substantial public health concerns, as individuals might opt for unproven solutions over approved therapies for treating serious and potentially life-threatening illnesses.

Adverse Event Reports and FDA Awareness

The FDA has received reports of adverse events linked to delta-8 THC-containing products. In the period spanning December 1, 2020, to February 28, 2022, the FDA documented 104 adverse event reports from individuals who consumed these products. Among these reports:

• 77% involved adults, 8% concerned pediatric patients under 18 years old, and 15% omitted age information.
• 55% necessitated interventions, such as emergency medical services or hospitalization.
• 66% described adverse events following the consumption of delta-8 THC-laden food items, such as brownies or gummies.

These adverse events encompassed a range of effects, including hallucinations, vomiting, tremors, anxiety, dizziness, confusion, and loss of consciousness. During the same timeframe, national poison control centers recorded 2,362 cases of exposure to delta-8 THC products. Among these cases:

• 58% involved adults, 41% pertained to pediatric patients below 18 years old, and 1% lacked age information.
• 40% entailed inadvertent exposure to delta-8 THC, predominantly affecting pediatric patients.
• 70% required health care facility assessment, with 8% necessitating critical care unit admission; notably, 45% of patients requiring health care facility evaluation were pediatric patients.
• Tragically, one pediatric case was recorded as having a fatal medical outcome.

Psychoactive and Intoxicating Nature

Delta-8 THC is endowed with psychoactive and intoxicating effects, akin to delta-9 THC, the compound accountable for the “high” often associated with cannabis consumption. The FDA acknowledges media reports of consumers experiencing a “high” from delta-8 THC products. Furthermore, the FDA expresses concern that these products might expose users to significantly higher delta-8 THC levels compared to those naturally present in raw hemp cannabis extracts. As a result, relying on historical cannabis use to establish safety parameters for these products is unreliable.

Manufacturing Process and Chemical Concerns

Delta-8 THC products often involve the use of chemicals to achieve the claimed concentrations of delta-8 THC in the market. The natural occurrence of delta-8 THC in hemp is notably low, necessitating the utilization of additional substances to convert other cannabinoids, such as CBD, into delta-8 THC through synthetic processes. This manufacturing approach raises concerns:

• Some manufacturers might employ potentially hazardous household chemicals during the chemical synthesis process, including chemicals that alter the final product's color.
• The synthetic conversion process might lead to the presence of potentially harmful by-products (contaminants) due to the chemicals used, with uncertainties surrounding other contaminants dependent on the initial raw material's composition.
• Manufacturing of delta-8 THC products could take place in settings lacking control or hygiene, thereby introducing unsafe contaminants or harmful substances.

• Keeping Delta-8 THC Products Away from Children and Pets: Packaging and labeling of delta-8 THC products often appeal to children, as seen with gummies, chocolates, cookies, and candies. These products can be purchased both online and in various retail outlets, including convenience stores and gas stations, where age restrictions might not be enforced. Notably, numerous alerts from poison control centers have arisen involving pediatric patients exposed to delta-8 THC-containing products. Additionally, incidents of accidental exposure of pets to these products have surged. To mitigate risks, ensure these products are inaccessible to children and pets.

Why the FDA is Raising Awareness about Delta-8 THC

The FDA's decision to inform the public about delta-8 THC stems from several factors:

• A notable increase in adverse event reports to both the FDA and national poison control centers.
• Marketing strategies, especially online, that attract children's attention.
• Concerns regarding contamination due to manufacturing methods that may yield delta-8 THC products with potential risks.

The FDA is actively collaborating with federal and state partners to address these concerns and monitor emerging cannabis-derived products. The agency remains vigilant in its commitment to safeguarding public health and safety, taking necessary actions against FDA-regulated products that violate regulations.

The Fate of Delta-8-THC Is Up In the Air

The fate of delta-8 THC hangs in uncertainty, caught in the balance between evolving legislation and the intricate intricacies of cannabinoid regulation. As legal battles, conflicting interpretations, and shifting guidelines continue to unfold, the future of delta-8 THC remains ambiguous. The ongoing debates surrounding its legality, production methods, and potential health risks cast a veil of unpredictability over this compound. While some states have embraced delta-8 THC's unique properties, others have imposed restrictions and bans, reflecting a divided landscape. As federal authorities and regulatory bodies grapple with defining its place within the legal framework, the trajectory of delta-8 THC remains suspended, awaiting the resolution of a complex and multifaceted dilemma.