February 19, 2021 6 min read

As the federal government legalized hemp, they also legalized CBD and other hemp derivatives, like Delta-8-THC. There’s no prohibition on a federal scale, but is Delta-8-THC legal in Montana?

Montana has legalized hemp and hemp derivatives which makes CBD and other hemp cannabinoids legal in the state. Unfortunately, Montana has not yet made exceptions in their Controlled Substances Act for THC’s derived from hemp, a key factor in the legalization of Delta-8-THC.

Until things change, Delta-8-THC may not be accessible in the state.

Here’s how Montana Delta-8-THC laws break down:

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
Montana Delta-8-THC Laws
Is Delta-8 a Controlled Substance in Montana?
Delta-8-THC Possession Limits in Montana
Is Delta-9-THC Legal in Montana?
Where to Buy Delta-8 in Montana
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.
  • Montana prohibits the sale and possession of all tetrahydrocannabinols, except for naturally occurring THC in concentrations lower than 0.3% on a dry weight basis.
  • Montana laws prohibit the sale of Delta-8 within the state, so Delta-8-THC is not easily accessible.
  • 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.

Flowering hemp plants, the primary source of CBD used to make Delta-8-THC.

Montana Delta 8 THC Laws

Montana has updated their hemp laws to legalize some hemp derivatives, like CBD. However, the state’s current legislation places limitations on tetrahydrocannabinols. The state defines “marijuana” as “all plant material from the genus Cannabis containing tetrahydrocannabinol (THC).”

Unfortunately, the state also lists all tetrahydrocannabinols and its isomers as a Schedule I Controlled Substance in the state, and the text makes no exception for THC derived from hemp.

Delta-9-THC is only allowed in amounts up to or less than 0.3% on a dry weight basis. All other forms of THC, in any amount, are considered a Controlled Substance. Until this changes, Delta-8-THC is illegal in Montana.

Here are some highlights from the relevant text:

MONTANA CODE ANNOTATED 2019 - EFFECTIVE FROM 8/24/2019

TITLE 80. AGRICULTURE. CHAPTER: 4 INDUSTRIAL HEMP PROGRAM. SUBCHAPTER: HEMP DEFINITIONS AND LICENSE APPLICATIONS

4.19.101 DEFINITIONS

(2) “Hemp” means the plant Cannabis sativa L. and any part of such plant, whether growing or not, with delta-nine tetrahydrocannabinol (THC) concentration of no more than 0.3 percent on a dry weight basis.

(3) “Hemp plant extract” means a processed product from hemp plant or floral material including but not limited to oil, powder, cake, pellet, etc.

TITLE 50. HEALTH AND SAFETY. CHAPTER 32. CONTROLLED SUBSTANCES. PART 1. GENERAL PROVISIONS

50-32-101. Definitions.

(18) ”Marijuana (marihuana)” means all plant material from the genus Cannabis containing tetrahydrocannabinol (THC) or seeds of the genus capable of germination.

TITLE 50. HEALTH AND SAFETY. CHAPTER 32. CONTROLLED SUBSTANCES. PART 2. SCHEDULING OF DANGEROUS DRUGS

50-32-222. Specific dangerous drugs included in Schedule I.

(4) Hallucinogenic substances. (ff) tetrahydrocannabinols, including synthetic equivalents of the substances contained in the plant or in the resinous extractives of cannabis, or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity, such as those listed in subsections (4)(ff)(i) through (4)(ff)(iii). Because nomenclature of these substances is not internationally standardized, compounds of these structures, regardless of numerical designation of atomic positions covered, are included in the category as follows:

(i) delta 1 (delta 9) cis or trans tetrahydrocannabinol and its optical isomers;

(ii) delta 6 cis or trans tetrahydrocannabinol and its optical isomers; and

(iii) delta 3,4 cis or trans tetrahydrocannabinol and its optical isomers;

Is Delta-8 a Controlled Substance in Montana?

Unlike other states that have legalized Delta-8-THC, Montana fails to make exceptions for hemp-derived tetrahydrocannabinols in their Controlled Substances Act. That means that Delta-8-THC is currently considered a Schedule I Controlled Substance in Montana.

Delta 8 THC Possession Limits in Montana

Because Delta-8 is illegal in Montana, there are no defined possession limits for the cannabinoid.

Is Cannabis (Delta 9 THC) Legal in Montana?

In 2011, Montana voters approved Montana Medical Marijuana Initiative by popular vote, which led to legalization of cannabis for qualifying medical patients. In 2017, the state further clarified medical cannabis laws through SB 333.

During the 2020 election, Montana also approved Initiative 190 by popular vote, also known as the Marijuana Legalization and Tax Initiative. This new legislation approved the recreational use of cannabis for consumers 21 and older, and access through state dispensaries is expected to roll out in 2021.

Where to Buy Delta 8 in Montana?

A collection of Delta-8-THC vapes, a popular product type that can be found in most areas where Delta-8 is legal.

Delta-8-THC is illegal in Montana and cannot be legally purchased in the state.

In places where Delta-8-THC is legal (like neighboring states Washington, Oregon, and Wyoming), 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 Montana 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. “”Rule 4.19.101” http://www.mtrules.org/gateway/RuleNo.asp?RN=4%2E19%2E101
  5. “Montana Code Annotated 2019, TITLE 50. HEALTH AND SAFETY, CHAPTER 32. CONTROLLED SUBSTANCES, Part 1. General Provisions” https://leg.mt.gov/bills/mca/title_0500/chapter_0320/part_0010/section_0010/0500-0320-0010-0010.html
  6. “Montana Code Annotated 2019, TITLE 50. HEALTH AND SAFETY, CHAPTER 32. CONTROLLED SUBSTANCES, Part 2. Scheduling of Dangerous Drugs” https://leg.mt.gov/bills/mca/title_0500/chapter_0320/part_0020/section_0220/0500-0320-0020-0220.html
  7. “INITIATIVE NO. 182” https://sosmt.gov/Portals/142/Elections/archives/2010s/2016/I-182.pdf
  8. “SENATE BILL NO. 333” https://leg.mt.gov/bills/2017/billhtml/SB0333.htm
  9. “INITIATIVE NO. 190” https://sosmt.gov/wp-content/uploads/I-190.pdf

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