Is Delta-8 THC Legal?

You likely know all about THC and CBD, but what about Delta 8?

It’s one of the fastest-growing cannabinoids on the markets, and one, that some cultivators and extractors have dubbed “legal THC.” But just how legal is delta 8? Is it safe to sell and purchase the compound? Do you have to worry about getting stopped by the police if you have delta 8 in your possession? What about driving under the influence of delta 8? 

Like many other cannabis products, delta 8’s legality is somewhat hazy. Let’s clear the air and find out what people mean when they describe delta 8 as legal THC.

What is Delta 8 THC?

Is Delta-8 THC Legal?

Delta 8 is a cannabinoid that looks nearly identical to regular THC under the microscope. The only difference being the placement of one covalent bond. Your standard-issue THC has a full scientific name—delta 9 tetrahydrocannabinol. The number following delta in both delta 8 THC and delta 9 THC refers specifically to the placement of this covalent bond. It might seem insignificant, but this one bond can make a world of difference.  

Both delta 8 and delta 9 THC are intoxicating—meaning consuming them will get high. However, delta 8 has been described by those who’ve used it as significantly more mellow than traditional delta 9 THC. Many who have experience with both delta 8 and delta 9 report that delta 8 intoxication tends to be less mentally impairing, and leaves users feeling more focused and clear-headed as opposed to couch-locked and anxious. While it’s important to remember that cannabinoids affect every individual differently, the anecdotal evidence strongly supports the idea that delta 8 typically energizes users.

Is Delta 8 Federally Legal?

The 2018 farm bill legalized hemp and delta 8

We talk a lot about the 2018 Farm Bill on this blog since it’s responsible for federally legalizing hemp and hemp-derived cannabinoids such as CBD, but it also plays a huge role in the rising popularity of delta 8. It’s the Farm Bill’s definition of hemp which makes it so essential to understanding the legality of delta 8. 

The legislation specifically defines hemp, regardless of labeling or marketing, as any cannabis plant which contains less than 0.3% delta 9 THC per dry weight. Because the bill expressly names delta 9 THC, many have interpreted this to mean that delta 8 is now federally legal. 

In response to the Farm Bill, the DEA issued an interim final rule (IFR) which stands as the agency’s official interpretation of the legislation. The IFR codifies five points:

  • Clarifies that marijuana does include hemp or hemp-derived products with less than 0.3% delta 9 THC.
  • Even products made from hemp that have more than 0.3% delta 9 THC will remain scheduled drugs.
  • Removed Epidiolex and any other FDA-approved CBD-based medications from the controlled substance list. 
  • The DEA’s definition of marijuana extract no longer includes products made from hemp as defined by the Farm Bill.
  • All products with synthetically derived cannabinoids remain scheduled drugs regardless of their delta 9 content. 

    Because delta 8 THC exists primarily in extract form, some manufacturers had concerns that the final point regarding synthetically derived cannabinoids may apply to delta 8 products. However, delta 8 is a naturally occurring compound in hemp, so even though the bulk of delta 8 products are extracts, they are organically derived. While it may not have been the intention of the USDA and DEA to legalize an intoxicating cannabinoid, the Farm Bill and subsequent IFR does essentially that. 

    Is It Legal To Drive On Delta 8?

    Because delta 8 is intoxicating, driving while under its influence could still result in criminal charges, such as a DUI. It’s always best to be careful and sober before operating a motor vehicle. If not, you’d be putting your life and the lives of others at risk.   

    Is Delta 8 Legal Everywhere?

    Delta 8 legality depends on the state

    Delta 8 THC may be federally legal, but ultimately it’s up to each individual state to set its own regulations regarding cannabis. My legislators are still debating what to do with delta 8, but as of now, twelve states have elected to formally ban the cannabinoid. 

    The twelve states where you’ll be unable to have delta 8 shipped are: Alaska, Arizona, Arkansas, Colorado, Delaware, Idaho, Iowa, Mississippi, Montana, Rhode Island, and Utah. Interestingly, you’ll notice that both Alaska and Colorado are on this list—two states where recreational cannabis is already legalized. Some speculate that this may be designed to encourage cannabis consumers to buy taxable products from state-approved dispensaries.

    The future of delta 8 remains unclear, but for now, it is legal in the remaining 38 states.