February 16, 2021 6 min read

Delta-8-THC gained legal status alongside CBD according to federal legislation, but every state is responsible for making its own hemp laws. With that in mind, you may be wondering “Is Delta-8-THC legal in Delaware?”

Unfortunately, no, Delta-8-THC is restricted in Delaware due to some legal technicalities.

Here’s what you need to know about Delaware Delta-8 laws:

Disclaimer: We’re always working to stay informed on the latest Delta-8 laws and research. However, state laws are subject to change and we advise that you do your own research to verify the information you find in this article. This is not intended as legal advice.

Table of Contents
Delta-8-THC and Federal Laws
Delaware Delta-8-THC Laws
Is Delta-8 a Controlled Substance in Delaware?
Delta-8-THC Possession Limits in Delaware
Is Delta-9-THC Legal in Delaware?
Where to Buy Delta-8 in Delaware
Is Delta-8 Legal in All 50 States?
Resources

Key Takeaways

  • Delta-8 is a cannabinoid derived from legal hemp, and is therefore legal according to federal legislation.
  • Delaware declares that Delta-8-THC, a THC isomer, is a Schedule I Controlled Substance.
  • Delaware prohibits the sale of Delta-8 products, so you won’t be able to find legal Delta-8 in the state.
  • In legal areas, many people buy Delta-8-THC products made from hemp online.

Delta 8 THC and Federal Laws

Delta 8's federal status is confusing at first glance. Technically, Delta-8-THC has been listed as a Schedule I substance alongside Delta-9-THC for well over a decade.

More recently, however, the Hemp Farming Act of 2018 was signed into law. Under this legislation, hemp containing less than 0.3% Delta-9-THC became legal, as did any cannabinoids, extracts, or isomers derived from the legal hemp material.

In fact, Section 12619b of the 2018 Hemp Farming Act specifically addresses tetrahydrocannabinols in hemp. By extension of this new law, Delta-8-THC was legal, or so it seemed.

Here's the catch:

Most of the legal Delta-8 products on the market are made by "synthesizing" CBD. While federal hemp legislation currently allows the production and sale of naturally derived cannabinoids, it specifically prohibits all synthesized cannabinoids.

So where does this put Delta-8-THC, considering it is both a naturally occurring cannabinoid and can be synthesized from legal CBD?

To understand, you need to take a look at the method used to turn CBD into Delta 8, which is vastly different from the complex process that is generally used to create synthetic cannabinoids.

The conversion process between CBD and Delta 8 relies on a transfer of isomers, a process called isomerization, between the two cannabinoids. This means that Delta-8-THC technically exists as a hemp "isomer," which is covered by hemp's legal definition according to the 2018 law.

In other words, Delta-8 is made from hemp and considered to be a naturally occurring part of the hemp plant.

The types of cannabinoids that the DEA typically carve out as “synthetic” are liquid agents that are frequently applied to plant material, like K2 and Spice. Legal forms of synthetic cannabinoids, such as Marinol, also exist as prescription pharmaceuticals. Unlike Delta-8-THC, these substances are purely synthetic and made in a lab without the use of plant material.

Of course, laws regarding cannabinoids are still subject to change as hemp regulations are ironed out by both the DEA and FDA. For now, Delta 8 maintains a federally legal status, but state laws still may pose limitations on Delta-8-THC access.

Hemp, a federally legal substance and the main source of most legal Delta-8-THC products.

Delaware Delta 8 THC Laws

Delaware’s neighboring states (Pennsylvania, Maryland, and New Jersey) have all legalized Delta-8, but Delaware’s hemp laws are still pretty hazy.

Although CBD seems to be legal, the state hasn’t done much to clarify its stance on CBD sales and use. On the other hand, it’s position on Delta-8-THC is pretty clear.

Delaware classifies any product that contains “any amount of” tetrahydrocannabinols or their isomers as a Schedule I substance. The only exception is THC products that are FDA approved, like various pharmaceuticals that are only available by prescription.

Unlike other states that make exceptions for “hemp derived tetrahydrocannabinols,” Delaware makes no such exception, rendering Delta-8 possession illegal and subject to penalty in the state.

Here are some highlights from the official state laws:

2019 DELAWARE HEMP RESEARCH PILOT PROGRAM

Hemp is the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with the federally defined delta-9 THC concentration of not more than 0.3 percent on a dry weight basis, or the THC concentration for hemp defined in 7 U.S.C. sec 5940, whichever is greater.

Title 7 – AGRICULTURE. CHAPTER 88 – RESEARCH. SUBCHAPTER VII – MISCELLANEOUS RESEARCH PROVISIONS

Sec. 5940 – Legitimacy of industrial hemp research (b) Definitions

(2) “Industrial hemp” The term ‘‘industrial hemp’’ means the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.

TITLE 16. CHAPTER 47. UNIFORM CONTROLLED SUBSTANCES ACT

  • 4701 Definitions [January 1, 2020].

(28) “Marijuana” means all parts of the plant Cannabis sativa L., whether growing or not, the seeds thereof, the resin extracted from any part of the plant, and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, or any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination. Marijuana does not include products approved by the US Food and Drug Administration.

  • 4714 Schedule I.

(d) Any material, compound, mixture or preparation which contains any quantity of the following hallucinogenic substances, their salts, isomers and salts of isomers, unless specifically excepted, whenever the existence of these salts, isomers, and salts of isomers is possible within the specific chemical designation:

(19) Any material, compound, combination, mixture, synthetic substitute or preparation which contains any quantity of marijuana or any tetrahydrocannabinols, their salts, isomers or salts of isomers and is not approved for use by the US Food and Drug Administration;

Is Delta-8 a Controlled Substance in Delaware?

Yes. Delaware classifies any amount of Tetrahydrocannabinol or its isomers as Controlled Substances within the state. Possession of a Controlled Substance in Delaware is punishable by a fine or ascending amount of jail time for every offense.

Delta 8 THC Possession Limits in Delaware

Because Delta-8 is not legal according to state law, there are no defined possession limits for Delta-8-THC in Delaware.

Is Cannabis (Delta 9 THC) Legal in Delaware?

Delaware passed the Delaware Medical Marijuana Act in 2011 to officially legalize cannabis for qualifying patients under the state’s medical cannabis program. Later, the state attempted to legalize cannabis for recreational use with HB 110, but it failed to pass.

Delta-9-THC falls under the blanket definition of “tetrahydrocannabinols” and is also considered a controlled substance in the state, except when legally purchased by a qualifying medical patient.

Where to Buy Delta 8 in Delaware?

Delta-8 vaporizers like these are a popular product choice in areas where Delta-8-THC is legal.

Because state law technically classifies Delta-8-THC as a controlled substance, you won’t be able to legally purchase Delta-8 in the state.

In places where Delta-8-THC is legal, Delta-8 can be found in stores, but many people prefer to shop online. It's advisable to proceed with caution when choosing a Delta-8 distributor. Shopping online allows you to buy directly from a brand or manufacturer, instead of purchasing through a third-party vendor that may not fully understand Delta-8 effects and uses or the laws surrounding Delta-8 products.

At Bloom Society, our Delta-8-THC products comply with all parameters of the Hemp Farming Act of 2018. We can also help answer questions about Delta-8, or you can read our “What is Delta-8-THC?” guide to learn everything you need to know.

Is Delta 8 Legal in All 50 States?

Delta-8-THC is currently federally legal under the context of the Hemp Farming Act of 2018, but each state has the right to determine their own stance on tetrahydrocannabinols derived from hemp. Delta-8-THC is illegal in Delaware according to state law, but you should read more about Delta-8 laws by state to determine the legality in other areas.

Resources

  1. “H.R.5485 - Hemp Farming Act of 2018” https://www.congress.gov/bill/115th-congress/house-bill/5485
  2. “Drug Fact Sheet: K2/Spice” https://www.dea.gov/sites/default/files/2020-06/K2-spice-2020.pdf
  3. “MARINOL” https://www.accessdata.fda.gov/drugsatfda_docs/label/2006/018651s025s026lbl.pdf
  4. “2021 Hemp Program” https://agriculture.delaware.gov/plant-industries/hemp-program/
  5. “Title 16 Health and Safety” https://delcode.delaware.gov/title16/title16.pdf
  6. “Drug Crimes and Penalties” https://www.antoinelaw.pro/drug-crimes.html
  7. “House Bill 110” https://legis.delaware.gov/BillDetail?LegislationId=25571

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