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January 11, 2023
Delta 8

Is Delta-8 Legal in California?

If you’re looking for premium delta 8 for eating, vaping, or drinking, welcome! Of course, the delta-8 THC legal question is usually the first thing most consumers want to know about, and it’s true, it’s potentially confusing.

Is Delta 8 Legal Federally?

Right now, around 18 states specifically address delta-8 THC with regulations or laws, but most state laws don’t. Instead they focus on cannabis, CBD products, or just marijuana and delta-9 tetrahydrocannabinol or THC.

Congress passed the farm bill in 2018 which legalized hemp in the United States and, through a kind of loophole, other cannabinoids. The 2018 Farm Bill defines delta-9-tetrahydrocannabinol or delta-9 THC as the prohibited substance in cannabis plants and defines hemp based on having a delta-9 THC concentration of 0.3 percent or less.

So the basic summary is: hemp derivatives and extractions from industrial hemp are legal. That’s because legal hemp plants are Cannabis sativa plants with less than 0.3% delta-9 THC by dry weight.

This means that right now, thanks to the farm bill, although they are still cannabis plants, the law excludes hemp plants in terms of legality. Since nearly all delta-8 THC on the market is hemp-derived, these delta-8 products are also legal.

Complicating this even further is the fact that some states failed to adopt the specific language surrounding that hemp law, which means delta-8 THC remains illegal there. The language of the local and state law needs to mirror the farm bill exactly for this argument to succeed.

In addition, where different retailers sell delta-8 THC varies from state to state based on the type of hemp product. Many delta-8 THC producers choose which states they sell to based on how they interpret the law of each state and their own risk in each place.

Finally, in August 2020 the US Drug Enforcement Administration (DEA) published an Interim Final Rule (IFR). The rule differentiates hemp and hemp-derived cannabinoids from marijuana, but it also reasserts that delta-8 THC is a synthetically derived form of THC. Any synthetically derived drug remains a Schedule I controlled substance at the federal level.

What is the Legality of Delta-8 in California?

Marijuana is a controlled substance and illegal at the federal level. California lawmakers legalized medical cannabis in 1996 by making the Compassionate Use Act state law. After its passage, California became the first state to allow medical marijuana. Today, cannabis and delta-9 THC are legal in the state of California for both medicinal and recreational use. The cannabis industry and California medical marijuana program are strictly regulated to protect the public health and retailer safety. The Department of Cannabis Control regulates cannabis and hemp laws and things like possession limits on hemp products generally.

But what about delta-8 THC specifically?

Technically, delta-8 THC is a cannabinoid acid and an isomer of THC, which is why it shares some of the same psychoactive effects. It comes in vape cartridges and vape concentrates, tinctures, edibles like delta-8 gummies and drinks, and other forms.

In May 2021, a California federal court found that delta-8 products are legal hemp products. This means that they are not controlled substances and are legal under federal law, as long as their THC concentration is less than 0.3%, under the Farm Bill as written.

However, in October of 2021, California lawmakers passed Assembly Bill 45 (AB-45) which redefined “THC” to include delta-8 THC as well as other THC isomers like delta-10 THC while excluding cannabinoids that are non-intoxicating such as CBD, CBC, and CBG. AB-45 also allows dietary supplements, foods, beverages, processed pet food, cosmetics, and other products that contain hemp and hemp-derived cannabinoids, derivatives, and extracts as long as they contain no more than 0.3% THC. This places hemp-derived cannabinoids like delta-8 THC within the regulatory reach of the state and allows California to define delta-8-THC possession limits, at least for delta-8-THC cannabis products purchased at state licensed dispensaries.

State laws in many other places have now restricted, regulated, or banned delta-8 THC products in some way. Right now, cannabis growers and buyers and sellers of delta-8 THC are watching legal changes in these states:

Arizona, Arkansas, Alaska, Colorado, Connecticut, Idaho, Delaware, Iowa, Kentucky, Mississippi, Michigan, Nevada, Montana, Vermont, New York, North Dakota, Rhode Island, Texas, Utah, and Washington.

These states are considering regulatory clarifications or legislative bans:

Illinois, Alabama, Oregon, and Oklahoma.

Federal legalization of cannabis and natural delta-9 THC could change the entire picture legally. There would be much less demand for synthetic delta-8 THC if cannabis was legal everywhere. If the Controlled Substances Act is merely amended to add delta-8 THC, we will see the same issue again with the next synthetic cannabinoid or cannabis product soon. But in the meantimes, cannabinoids like delta-8 THC, HHC, THC-O, delta-10 THC, and probably many others to come attract the attention of consumers and cannabis brands alike.

In the meantime, if cannabis was legal at the federal level and in every state, and consumer demand for delta-8 products continued, it would be easy to simply monitor and regulate those products like anything else.

Final Thoughts on Delta-8 THC in California

For now, under California law it is still possible to buy Delta 8 hemp products, although they are more closely regulated than they have been in the past. The SAFE banking act, which has already passed the House, may soon be considered by the Senate. If this gets passed, it may open up the adult-use cannabinoid market and lift cannabis restrictions nationwide.

Disclaimer: Remember, check your local and state laws and regulations before you place any kind of order, including before you buy delta-8 THC. And whatever reasons you have for using cannabis and THC products, be aware that they are not regulated by the US Food and Drug Administration (FDA).

To find out more about cannabis and public health law in California, visit https://cannabis.ca.gov/