If you are looking for CBD products or THC products, or products that contain Delta 8 and Delta 9 specifically, things might get tangly. First, are CBD products legal in your area? Sure, they’re federally legal, but state by state it can get a little sticky. Lately, we’ve been getting a lot of questions about specific types of THC and their legalities:
- Is Delta 8 legal?
- Is Delta 9 legal?
- What is the role of the Food and Drug Administration?
- Where can I buy Delta 8 or Delta 9 THC legally?
The questions are difficult to answer without knowing what state you live in – because this is often the part that dictates for you if you will be able to legally purchase and use certain types of (or any) THC in your CBD products in the area in which you live.
Today we’re not looking at the restrictions posed at your workplace or organization but at the states themselves – and their legal takes on Delta 8 and Delta 9, two popular types of THC. Read on to discover if your state disallows that new CBD product you’ve got your eye on – the one with Delta 8 or Delta 9 in it.
THC Regulation Differs State by State
- The language in the 2018 Farm Bill does make a distinction between Cannabis sativa that is heavy in THC and grown as marijuana, and those plants known as “industrial hemp” which are much lower in THC and used to produce a wide variety of hemp-derived products. This distinction allows, federally speaking, for hemp-derived products to be less regulated than their cousin marijuana, which is more heavily regulated for both recreational and medicinal use.
- Each state, however, has its own governing bodies, and some may interpret the law a little differently or disagree with it altogether as they work to make the state law applicable for their own constituents. Because of these discrepancies, each state may choose to regulate all cannabinoids, some cannabinoids, only THC, or in some cases specific isomers of THC like Delta-8 or Delta-9 THC.
- Because Delta 8 can be produced in a few different ways, some states regulate against producing it from marijuana or require it to be sourced only from hemp. Some states do not allow for it to be formed by altering CBD in the extraction and production processes.
- Most states adhere to the federal laws on regulating the amount of THC in any given CBD product and may not be exact on the language as to which THC isomers are allowed.
- Many states have fuzzy language around cannabinoids, and it can be very confusing to figure out what is legal to produce, purchase, travel with, or use within the state.
- Some states also set an age limit.
- It is up to the federal Food and Drug Administration to approve any CBD or marijuana products for medicinal uses and determine how those products are to be prescribed, purchased, and used. Some states also require medical marijuana licenses or cards.
For our purposes here today, we are discussing THC within CBD products only – not within medical marijuana or recreational marijuana. And to date, only a handful of these products have been approved for medical use by the FDA.
The Role of the US Food and Drug Administration (FDA)
The FDA regulates how we are able to produce, purchase, and use things we put into our bodies (food, beverage, medications, supplements, and yes, drugs). Because of the verbiage around hemp-derived products, which previously were lumped into the same category as intoxicating marijuana, it was difficult to separate the marijuana products from any kind of products containing CBD or other cannabinoids from Cannabis sativa.
Cannabis sativa plants produce a whole lot more than recreational marijuana; in fact, we can grow industrial hemp richly abundant in the beneficial cannabinoids and lower in THC. In this way, we can better control how much THC goes into therapeutic products, which are less concerned with psychoactive effects as they are effects of comfort, better sleep, improved mood, and enhanced quality of life.
While this is great news for the consumer, getting these more beneficial products past the FDA has been a problem – until the 2018 Farm Bill changed the language.
The 2018 Farm Bill
The 2018 Farm Bill did several things that have a big impact on the cannabis and CBD industries. First, it loosened up the language around hemp-derived products.
The new language makes a distinction between hemp-derived products and marijuana, removing hemp-derived products from the controlled-substances list.
The FDA promises, as written on their website, “Our work on hemp products will continue to be founded in our public health mission and our commitment to making sound, science-based policy.” The 2018 Farm Bill’s re-classification of hemp allows for less regulatory restriction on Cannabis sativa derivatives that are not produced as marijuana products nor intended for that type of recreational or medicinal use.
Because the Farm Bill stipulates how much THC can be present in the final product, this ensures the public is able to find, purchase, and use these therapeutic products. The amount of any type of THC, whether Delta 8, Delta 9 or some other type, is regulated to be no greater than 0.3 percent dry weight of any CBD or hemp-derived product intended for human consumption or topical use.
Note: Keep your eye on the Hemp Advancement Act, which has been introduced to Congress and aims to increase this legal amount of THC from 0.3 percent to 1 percent: Hemp Advancement Act.
How/Why Delta 8 and Delta 9 Are Regulated by the States
The differences come with state laws. While states adhere to the federal guidelines of the Food and Drug Administration, they also make restrictions of their own. Which may mean that the CBD products, or ones that contain Delta 8 THC or Delta 9 THC might be legal, or some particular types may not be.
The only way to determine this is to research your own state and do it rather often to see if any new changes have been made to the laws.
Why Are the Legalities So Complicated for THC?
It is difficult for lawmakers to wrap language around an ever-changing and rapidly growing industry that is consistently finding new ways to synthesize cannabinoids, new ways to put them into products for everyday use, and new ways cannabinoids can be useful. Because hemp is so highly versatile, and because of its botanical connection to its “cousin” marijuana, it's hard to keep a body of laws in place that is precise and current.
Many states simply go with what is determined by the FDA, which makes it easier to understand what is and is not allowed.
Some states, such as California and Maine, for example, press a little further than the FDA, as they have a more marijuana-friendly governance. However, being marijuana-friendly doesn’t mean a state will be totally onboard for all derivatives of hemp. This makes for a hodgepodge of CBD laws and THC laws for each state that may or may not line up with what is federally legal.
Purchasing Delta 8 and Delta 9 Legally
- Check your state's laws.
- Choose a reputable distributor – either a local brick-and-mortar store or a reputable online distributor.
- Check to see that the product meets your state’s and federal guidelines.
- We caution against roadside or flea market purchases of unverified brands.
Delta 8 Legal, Delta 9 Legal, Not Legal, or a Mix
For all states, to be federally legal, the THC content must be at or below the federally regulated amount of 0.3 percent of dry weight. Below is a state-by-state breakdown so you can quickly see the information that affects you, directly.
The following states are more relaxed on their regulation of cannabinoids, allowing Delta 8, Delta 9, and CBD – within the less than 0.3 percent mandated by federal law. Some states do require the Delta 8 to come from hemp and not from marijuana.
- Connecticut and Michigan – Delta 8 is regulated in the same manner as recreational cannabis, which as of July, 2021, is legal for adults over the age of 21.
- New Hampshire
- New Jersey
- New Mexico
- North Carolina
- South Carolina
- South Dakota
- West Virginia
The Following States do NOT allow Delta 8, specifically, likely due to its origin:
- Alaska – However, Delta 9 THC and CBD are both legal, as well as recreational marijuana use.
- New York
- North Dakota
- Rhode Island
The following states have a little more confusing regulations:
- Arizona – Unclear legality on Delta 8, 9, and 10.
- Arkansas – Unclear on THC variants. Legal on CBD.
- California – Unclear legality on Delta 8. Delta 9 legal. Legal CBD.
- Colorado – Delta 8 is not legal because of how it is synthesized from CBD. Delta 10 seems to also be on the banned list for this state.
- Kentucky seems to be OK with CBD but fuzzy on THC isomers.
- Mississippi – Unclear legality on Delta 8.
- Louisiana stipulates amounts of THC isomers as legal, individually by amounts, and also total THC content of 1 percent.
If you are still unsure about what is or is not legal in your state, contact the legislative bodies in your state.
To Learn More
To learn more about Delta 8 legal restrictions or Delta 9 legal restrictions, follow our blog (Education tab) and bookmark the following sites to stay in the know:
- The FDA page on CBD and hemp products.
Using the search bar on this Congress page for “hemp” you can see what bills are coming up for hemp-derived products, regulation, industry, etc.