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Is Delta 8 THC Legal?

Judge hammer and hemp plants showing legalityDelta 8 THC, known as delta-8-tetrahydrocannabinol, is a psychoactive compound derived from Cannabis sativa. From a legal perspective, congress recognizes two forms of cannabis:

Marijuana: Considered illegal, with some exceptions like medical needs.

Hemp: Considered legal, as long as it’s under 0.3% THC.

Because delta 8 is derived from hemp, the low-THC variety of cannabis, the law dictates that it’s legal. But, there are some exceptions. We’ve compiled this short article to help clear the air on delta 8 and its legality. Keep reading below to find out more.

Is Delta 8 Weed?

Delta 8 is not “weed,” at least in the way we traditionally perceive its effects. Traditional “weed” contains high levels of THC, known as delta 9 (responsible for the high). Conversely, delta 8 is a much more mild intoxicant than delta 9, hence the nickname “diet weed.”

Hemp leavesAccording to a 2022 study published in the British Journal of Pharmacology, delta 8 is very similar to delta 9. One big difference is that it has much weaker potency than delta 9. Although scientists still aren’t 100% sure why delta 8 is weaker than delta 9, it’s been theorized that delta 8 binds to CB (cannabinoid) receptors at different rates.

Potential Benefits of Delta 8 THC

While the FDA (Food and Drug Administration) urges caution when using delta 8, there may be some advantages to using it, especially compared to its more psychoactive counterpart delta 9. Benefits of using delta 8 include:

  • Less intoxicating than delta 9
  • Mild high, with less anxiety
  • Federally legal
  • Readily available
  • More alert; less brain fog

While not everyone will feel the same mild effects, delta 8 is much less intoxicating than delta 9. One study asked respondents how they felt about delta 8 vs. delta 9. After the study, users stated that delta 8 was much more calming and made them less irritable.

Is Delta 8 Federally Legal?

word legal zoomed in on in a bookIn a recent opinion by the 9th Circuit Court of Appeals, a California judge ruled that delta 8 and other cannabinoids derived from hemp are legally protected under the 2018 Farm Bill Act. By law, the Farm Bill Act stipulates that hemp containing less than 0.3% THC is legal.

Delta 8 Legalization

The Farm Bill Act is silent on delta 8, except to state that “all extracts and cannabinoids” less than 0.3% are federally legal. In its 3-0 ruling, the court noted the following:

“Regardless of the wisdom of legalizing delta-8 THC products, this Court will not substitute its own policy judgment for that of Congress.” 

Are There Exceptions To Federal Legality?

From a legal standpoint, federal law usurps most laws. But there are two exceptions, one being state law (more on that below) and independent government agencies - namely The Drug Enforcement Agency (DEA) and the Food and Drug Administration (FDA). 

Does The DEA Ban Delta 8 THC?

judges gavel being slammed down on a hemp leafThe DEA listed delta 8 as a controlled substance (tetrahydrocannabinol) as late as August 2020. In 2021, however, in response to an Alabama court seeking legal clarification, the DEA stated the following:

  • If extracted naturally and containing less than 0.3% THC, delta 8 is not considered a “controlled” substance.
  • If extracted synthetically “from non-cannabis,” it’s considered a controlled substance.

Because delta 8 is expensive to extract artificially, manufacturers source it synthetically, technically making it a controlled substance. However, most cannabis experts and lawyers say that the Farm Bill Act supersedes any agency laws, thus making it safe to buy - for now.

Is There a Delta 8 Ban from the FDA?

Delta 8 is not regulated by the FDA, meaning they have limited oversight. The FDA, however, issued warning letters to five companies selling delta 8 marketed as treatments for certain diseases, including cancer and arthritis. In the letters, the FDA claimed these companies violated FDCA law.

Is Delta 8 Legal in All 50 States?

The second possible exception to federal law is state law. 

Where Is Delta 8 Illegal?

The following states ban delta 8, meaning you can’t legally buy, sell or use it - even recreationally.

  • Alaska
  • Arizona
  • Arkansas
  • Colorado
  • Delaware
  • Idaho
  • Iowa
  • Mississippi
  • Montana
  • New York
  • Rhode Island
  • Utah

If you don’t live in one of these states, there still may be some regulations, but you’re legally allowed to use delta 8 THC (as long as it’s under 0.3% THC).

Will Delta 8 THC Show Up On My Drug Test?

Depending on where you live, consider using caution with delta 8. The same goes for your next drug test. Most drug tests look for THC and don’t distinguish between delta 8 and delta 9. 

Short answer: yes, most tests, especially urine screenings, will show positive for THC if you’ve been using delta 8.

What Should I Look For When Buying Delta 8?

woman holding big hemp plant from farmThe most obvious problem with delta 8 and its legality is the lack of oversight. Because of poor regulation, you may have good intentions when buying your delta 8 and wind up with a product over the legal THC limit. 

Can You Buy Delta 8 at 18 Years Old?

There has been a lot of toss up between state regulations. Some states were allowing the sale of Delta 8 to customers starting at the age of 18, while others strictly held at 21. The age required to purchase all Delta 8 products is now set at 21+.

Can You Smoke Delta 8 In Public?

To avoid legal issues, look for the following when purchasing delta 8 THC:

  • Go to their website and look for a lab report. A lab report, or certificate of analysis, means the company tested their delta 8 by an independent third party and contains the legal limit of THC.
  • Watch out for companies promising miracle “cures.”
  • Use hemp-based extracts.
  • Consider delta 8 an investment; good things are seldom cheap and cheap things are seldom good.

Although federally legal, you’ll want to look at your state laws first. Some states, like Colorado, legalize the sale and possession of marijuana but ban delta 8. To avoid confusion, check state laws surrounding delta 8 before making your next purchase.

How is Delta 8 Legal?

Aside from the eleven states with outright bans, delta 8 is legal as long as it’s extracted naturally from hemp. While the DEA and FDA have conflicting viewpoints, the federal law protects delta 8 as long as its sourced from hemp and contains less than 0.3% THC.

Final Word

For maximum insurance, buy your delta 8 from reputable manufacturers that list their lab reports online. Avoid companies that make outlandish claims, like “delta 8 is the latest cure for cancer”, etc. As always, talk to a doctor before starting a delta 8 regimen. If you’re new, start with the smallest possible dose.

*These statements have not been evaluated or approved by the Food and Drug Administration and are not intended to diagnose, treat or cure any illness. Any medical advice should be taken from a medical professional.

All of the articles on this site are written by 3rd party content providers, expert bloggers, or doctors not directly affiliated with EHDelta.

Individuals should learn the risks and side effects prior to taking any Delta products. Make sure to always check with a medical professional before starting any new Delta treatment or medication that is not FDA-approved.

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