Subscribe & Save 20% on Every Order  Shop Now!


Subscribe & Save 20% on Every Order  Shop Now!

February 28, 2023
Delta 8

Is Delta 8 Legal? The Definitive Guide to Delta 8 Legality

If the only thing standing between you and a sweet, mild Delta-8 high, you’re in the right place! In this article, we’re going to give you the information you need about Delta-8 THC products:

  • The legal status of Delta-8 tetrahydrocannabinol or Delta-8-THC and the basics about it;
  • The difference between hemp plants and marijuana plants, their active compounds, and ingredients; and
  • How things like potency, varieties, concentrations of other minor cannabinoids such as cannabidiol (CBD), and THC amounts in hemp products play into legal status on the market.

Okay, let’s go!

The 2018 Farm Bill

The 2018 Farm Bill, also known as the Agriculture Improvement Act of 2018, was passed and signed into law on December 20, 2018. This major milestone for the cannabis industry legalized hemp-derived products with a THC concentration of less than 0.3% at the federal level.

Under the Controlled Substances Act (CSA), THC from marijuana plants remains on Schedule I. However, Delta-8 THC is not specifically scheduled under the U.S. Controlled Substances Act, and so thanks to that partial legalization, it is not regulated by the Drug Enforcement Agency (DEA).

Even so, people must cultivate hemp plants as part of an agricultural research pilot program or pursuant to a state-approved industrial hemp program. Hemp-derived products must also follow restrictions with regard to labeling, sales, and other types of regulations outlined by states.

Given all of these facts, it appears that Delta 8 products derived entirely from lawful hemp sources are indeed federally legal under the 2018 Farm Bill as long as they’re within the limits, containing less than 0.3% of other cannabinoids by dry weight.

As of 2021, 14 U.S. states including California and New York have enacted legislation specifically addressing Delta 8 THC, with 12 prohibiting its sale, possession or use in some form.

Alaska, Arizona, Hawaii, Kansas and Nebraska, for example, have enacted their own laws that ban the sale and possession of Delta 8 products. Notably, many of these laws have yet to be tested in court.

And some aren’t outright bans, but restrictions on the forms of D8 that can be used. For example, some states prohibit Delta 8 vapes, but not gummies or other edibles.

In other states, such as Colorado, Georgia and New Hampshire, there are no known bans on Delta 8 THC. However, you should always check your local state laws before purchasing any kind of cannabinoid product.

In addition, some states appear to be considering legislation that would restrict access to Delta 8 products; for example, Washington State recently introduced a bill that would ban the sale and possession of certain cannabinoids including Delta 8 THC.

Which states are legal Delta-8 THC states?

Delta 8 is currently legal in Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin and Wyoming.

Find out the current status of the legality of Delta-8 in your state:

Alabama Alaska Arizona Arkansas California
Colorado Connecticut Delaware Florida Georgia
Hawaii Idaho Illinois Indiana Iowa
Kansas Kentucky Louisiana Maine Maryland
Massachusetts Michigan Minnesota Mississippi Missouri
Montana Nebraska Nevada New Hampshire New Jersey
New Mexico New York North Carolina North Dakota Ohio
Oklahoma Oregon Pennsylvania Rhode Island South Carolina
South Dakota Tennessee Texas Utah Vermont
Virginia Washington West Virginia Wisconsin Wyoming


That said—some local governments within these states have implemented individual restrictions on Delta 8 products. In Arkansas and Nevada for example—retail stores may only distribute Delta 8 if they have been licensed to sell marijuana products such as hemp-derived CBD. It’s always best to check with your local regulatory authorities before purchasing or selling any type of Delta 8 product.

DEA’s Position on Delta 8

When it comes to Delta 8, the DEA’s position is a bit nuanced. The DEA appears to be leaning toward interpreting Delta 8 the same way as Delta 9 THC under the same Drug Code (7370), meaning they would consider both controlled substances. However, their opinion doesn’t overrule the 2018 Farm Bill which exempts hemp products from DEA regulation.

That said, many states are interpreting the law differently, causing some confusion. The 2018 Farm Bill was written without language specifically regarding Delta 8 and so it can be difficult to ascertain the actual legal standing of this cannabinoid.

Furthermore, certain states have begun implementing their own laws defining Delta 8 as a “synthetically derived compound”, thereby allegedly making it illegal in those states, even if things made from it are derived from hemp extractions.

It is important to note that the Farm Bill does not preempt state laws either, which means that states and local authorities may create their own rules which could differ from federal law. When it comes to Delta 8 and its relationship with the DEA, there are still many questions left unanswered and much grey area surrounding its legal status.

Effects of Delta 8

The popularity of Delta 8 products among consumers grows from the benefits they perceive from using it. Many users report relaxation, or feelings of euphoria, with normal serving levels of Delta 8. At a higher amount, Delta 8 may cause a sedating effect.

To get a clear sense of all of the factors that will affect your experience, check the list of ingredients before buying any Delta 8 product. Chemical analysis from lab testing can reveal not only Delta 8 content but also ensure your product is free of contaminants, and even any extra THC you weren’t looking for.

Conclusion on Delta 8 Legal Status

Thanks to the 2018 Farm Bill, Delta 8 is not classified as marijuana or a controlled substance. As such, it can be sold by retailers in many US states and online, though some states have moved to block commercial use of Delta 8 due to uncertainty about its status.

Since its regulatory status appears to vary from one state to another, it’s always smart to research the laws where you live before proceeding. It is important to keep in mind that legality could change quickly if state or federal legislators decide to make a definitive ruling on the compound’s legal standing.

Written by Diet Smoke Staff Writers

The staff writers for Diet Smoke have been researching and writing about premium hemp-derived THC and CBD products for more than 3 years. The team has a keen understanding of the topic, remain current on all FDA and industry news, and use their expertise to generate engaging and informative content to help educate consumers on Diet Smoke’s products. Each article is fact-checked and includes sources to scientific data to ensure readers receive the most up-to-date and accurate information possible.

Find out more about Diet Smoke, our history and our commitment to creating the highest quality products.

Reviewed By Colby Wohlleb

Colby Wohlleb, editor of Diet Smoke, reviews and approves all content before releasing it for posting on the Diet Smoke website. As a tireless advocate for the benefits of premium hemp-derived THC and CBD products, Colby ensures that all content is accurate, engaging, and informative. He also works directly with a trusted source to ensure the purity of the products we sell and performs rigorous lab testing to ensure that Diet Smoke’s products (such as our Delta-8 gummies) are of the highest quality and safety standards.