January 11, 2023
Delta 8

Why is Delta-8 THC Illegal in Colorado?

Delta-8 tetrahydrocannabinol or delta-8 THC is a hugely popular cannabis trend at the moment…so you might be surprised to learn it’s illegal in Colorado! In this post, we’ll cover the basics:

  • How and why under state law, the use, possession, sale, and distribution of hemp delta-8 THC is illegal in Colorado
  • The practical effect: you cannot purchase delta-8 online or in stores, but marijuana-derived delta-8 remains legal
  • Delta-10 THC and some other compounds are also illegal in Colorado
  • Why you can’t buy delta-8 THC online in Colorado

Okay, let’s get started talking about delta-8 THC and why it can’t give you a Rocky Mountain high.

FAQ: The Legality of Delta-8 THC in Colorado

In 2022 citing safety concerns, Colorado state lawmakers defined delta-8 THC as a synthetically derived and controlled substance under state law. This prohibited the use, purchase, production, possession, sale, and distribution of delta-8 THC products across the state of Colorado. The state now joins 18 others in the US that ban, restrict, or regulate delta-8, including Alaska, Oregon and Arizona.

On the other hand, tiny, trace amounts of delta-8 THC occur naturally in hemp and marijuana plants. This is permitted in Colorado because it is not derived from cannabidiol (CBD) or delta-9 THC by humans with chemical synthesis and instead is created in nature.

Colorado Hemp History: From the 2018 Farm Bill to CDPHE and MED in 2021

Hemp-derived delta-8 THC wasn’t always illegal in Colorado. Senate Bill 19-220 (SB. 19-220) legalized hemp extracts and all hemp-derived products from tinctures to edibles in 2019 to line up with the 2018 Agriculture Improvement Act (usually called the 2018 Farm Bill). This legalized hemp compounds such as delta-8, HHC, and delta-10 THC.

So, is delta-8 THC legal at the federal level? Yes. But is it legal in Colorado? No. The Colorado Department of Public Health & Environment (CDPHE) and Marijuana Enforcement Division (MED) intervened in May 2021 and issued a notice. This clarified that it is illegal to chemically modify or convert any naturally occurring cannabinoids from industrial hemp products such as CBD isolate.

Hemp-derived delta-8 THC is typically synthesized chemically from CBD isolate, so this effectively outlawed delta-8 under Colorado state law, as the Colorado Health Department considers it a controlled substance according to Title 18 of the Colorado Criminal Code, Article 18 (Uniform Controlled Substances Act 2013) and Senate Bill 14-184. Thanks to this, delta-8 and other hemp-derived THC isomers are not allowed in gummies, vapes, dietary supplements, or cosmetics.

The next source of federal pressure came not from the FDA, but from the Drug Enforcement Administration (DEA). In 2020, the DEA issued an Interim Final Rule (IFR) questioning whether delta-8 THC should be classified as a synthetic controlled substance at the federal level. Several US states have restricted or prohibited delta-8 preemptively as a result of the IFR.

What are the Penalties for Delta-8 Possession in Colorado?

Although delta-8 THC is not legal in Colorado, the penalties for having it are not very severe.

After Colorado lawmakers passed Colorado House Bill 19-1263 in March 2020, small amounts of Schedule I or Schedule II substances including cannabinoids such as delta-8 and delta-10 THC were decriminalized.

This means that as long as you have 3 ounces or less of delta-8 or delta-10 in Colorado, an arrest is unlikely, and if you do, you’re more likely to get probation, a small fine, treatment, or community service for this level 2 drug misdemeanor.

Are Marijuana Products Legalized in Colorado?

Yes. Medical and recreational marijuana is legal in the state of Colorado.

Way back in 2000, medical marijuana was legalized with certain restrictions under the Medical Use of Marijuana Act, Amendment 20. This changed the Colorado Constitution to allow patients to possess no more than two ounces of medical marijuana for conditions such as seizures, cancer, and severe pain.

In 2012, Colorado Amendment 64 legalized recreational marijuana with a few limitations for adults over the age of 21.

Is Cannabis-Derived Delta-8 THC Legal in Colorado?

Yes. Provided it’s naturally-sourced and not synthesized from CBD, marijuana-derived delta-8 THC is legal in Colorado.

Buying Delta-8 THC in Colorado

It is illegal to buy hemp-derived delta-8 THC products in the state of Colorado. Online and brick-and-mortar dispensaries, head shops, or vape stores are not permitted to sell or ship delta-8 in any form in Colorado.

Can You Travel in Colorado with Delta-8 THC?

Technically, if you do you may be charged with the same misdemeanor we described above. For this reason, it’s safer not to travel with delta-8 THC where it is illegal (especially in high quantities).

Is Delta-10 THC Legal in Colorado?

No. Like delta-8, delta-10 THC is considered to be synthetically derived from CBD isolate, and is illegal in Colorado.

Is CBD legal in Colorado?

Yes, even though things that are derived from it are not legal, hemp-derived CBD is legal in Colorado under state and federal law. You can buy, possess, use, sell, distribute, and produce hemp-derived CBD products here in CO.

For CBD to be legal under federal law, it must be derived from hemp plants which are compliant with the Farm Bill. This simply means cannabis plants with no more than 0.3% THC dry weight. Hemp plants with over 0.3% THC are considered marijuana plants, legal in Colorado under state law but illegal and a controlled substance under federal law.

Final Thoughts on Delta-8 THC in Colorado

As of today, delta-8 THC remains illegal in Colorado. Some in the hemp industry see that changing, while others say that is unlikely, particularly in light of the DEA action and the powerful recreational cannabis industry perhaps opposing it.

For now, to enjoy your smooth and mild delta-8 THC products, friendly states such as Wyoming, Kentucky, or Kansas may be your best bet.