You’d be hard pressed to name a product where local regulations vary as much as with delta-8 THC. You might be able to freely sell a delta-8 THC gummy in Kentucky, but cross the southern border to Tennessee and you can’t sell it without meeting specific testing and labeling requirements, and if you cross eastwards into West Virginia it’s totally banned. 

Running a business amid this patchwork of regulation is more than a headache; it’s the type of task you need a lawyer on staff to stay on top of and even then there’s a chance you’ll be burned by an over-eager District Attorney or cops that got the wrong idea.

To tackle this issue, CBD Oracle teamed up with Neil Willner, co-chair of the Cannabis Group at Royer Cooper Cohen Braunfeld, to look through state laws in detail and give the industry the real picture on the law as it stands today.

 Delta-8 THC Is Legal with Limited Regulations in 22 States and 1 District

In 22 states and the District of Colombia, delta-8 THC remains legal essentially according to the 2018 Farm Bill.

These states – like Arizona, Illinois, Kentucky, Ohio and Wisconsin – are the only places where you can sell an average delta-8 THC product without additional requirements. However, only a handful of these states (e.g. Florida and Maryland) stop youth from being able to buy delta-8 THC, so internal policies are crucial when it comes to keeping delta-8 out of the hands of minors. 

17 States Ban Delta-8 THC and 7 Strongly Restrict It

There are many states where it’s basically impossible to do business in delta-8 THC while still abiding by state law. In fact, 17 states outright ban the cannabinoid and another 7 restrict it so much that most products can’t be sold.

Delta-8 THC bans can work in different ways. Some states (like New York and Colorado) ban the “isomerization” process used to make delta-8 THC from CBD, others didn’t make iron-clad exemptions from the state’s controlled substances list for hemp (like Idaho and Rhode Island) and some explicitly ban delta-8 THC (like in Massachusetts and the soon-effective law in Alaska).

There are also severe restrictions in 7 states, such as Iowa, Minnesota and New Hampshire, which usually limit all THCs combined to be less than 0.3% by dry weight.

In these states it’s technically possible to legally sell delta-8 THC products. However, since most commercial products are only intended to contain less than 0.3% delta-9 THC, delta-8 products generally don’t meet these requirements.

Just Three States Opt to Substantially Regulate

While it is theoretically possible to sell delta-8 THC in other places – for example, in Nevada – if it’s part of the adult use marijuana industry, only a few states actually have delta-8 THC for sale under a substantial set of regulations. In California and Connecticut, you can sell delta-8 THC as marijuana in state-licensed dispensaries, provided they meet all the testing and labeling requirements of regulated marijuana products.

In Tennessee, the requirements for delta-8 are pretty much like those of a regulated marijuana industry. It has to be tested for impurities, labeled accurately and advertised in a way that doesn’t appeal to youth, but it can still be sold as hemp.

Delta-8 THC’s Days Might Be Numbered (But Maybe Not)

Unfortunately for hemp producers who’ve come to depend on delta-8 THC sales as a way to stay profitable amid an over-supply of CBD, things could change for delta-8 THC before the end of the year. The 2023 Farm Bill is coming, and its likely lawmakers will take the opportunity to correct the “mistakes” of the 2018 bill.

However, change isn’t a foregone conclusion: Congress may essentially leave the definition as it stands and focus on rules for finished products, which were critically absent from the 2018 bill. If it goes this way, the current “patchwork” system of rules will continue, as some states continue to follow federal blueprints and others double-down on existing bans.

Whatever happens, CBD Oracle’s state-by-state map will be kept up-to-date so both sellers and consumers can stay on the right side of the law.  


About the author:

Lee Johnson is the senior editor at CBD Oracle, and has been covering science, vaping and cannabis for over a decade. He focuses on research-driven deep dives into topics ranging from medical uses for CBD to industry and user statistics, as well as general guides and explainers for consumers.

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