Is Delta-8-THC Legal in New York?

New York has been known for some shaky hemp laws and a confusing stance on how CBD products can be made, but the state's legislative text seems to clear the air on some hemp-derived products. Delta-8 is legal according to federal law, but is Delta-8-THC legal in New York?

New York's legal definition for hemp originally covered all derivatives of hemp, like Delta-8, but the state recently adopted new rules that ban Delta-8 (and all smokeable forms of hemp) entirely. In other words, Delta-8 is illegal in New York.

Here's what else you need to know about New York 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
New Mexico Delta-8-THC Laws
Is Delta-8 a Controlled Substance in New Mexico?
Delta-8-THC Possession Limits in New Mexico
Is Delta-9-THC Legal in New Mexico?
Where to Buy Delta-8 in New Mexico
Do You Have to Be 21 to Buy Delta-8?
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.
• New York's legal definition for hemp closely matches the federal definition, but expressly bans hemp products made through isomerization methods, which includes Delta-8.
• You generally need to be at least 21 years old to purchase Delta-8-THC products made from hemp in areas where it is legal. 

New York Delta 8 THC Laws

New York officially enacted their own hemp legislation in response to the 2018 Farm Bill. This text broadly legalized CBD and all other hemp derivatives.

The state's definition for hemp is almost identical to the federal definition. In New York, hemp is classified as any part of the Cannabis Sativa plant, including all cannabinoids, extracts, isomers, and other derivatives, providing the dry plant material contains less than 0.3% THC by weight.

The state's Controlled Substances Act differentiates between "marihuana" and "hemp." However, the state has since released new rules that clarify their stance on Delta-8-THC products. The new rules states that hemp products may “not contain synthetic cannabinoids, or cannabinoids created through isomerization, including delta-8 tetrahydrocannabinol and delta-10 tetrahydrocannabinol." 

Here are some excerpts from the official legislative text:

ARTICLE 29 GROWTH OF HEMP

• 505. Definitions.

1. “Industrial hemp” means the plant Cannabis sativa L. and any part of such plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.

• 505. Definitions.

1. “Hemp” means the plant Cannabis sativa L. and any part of such plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than three-tenths of a percent on a dry weight basis.

• 520 Definitions

2. “Hemp extract” means any product made or derived from industrial hemp, including the seeds thereof and all derivatives whether growing or not, with a delta-9-tetrahydrocannabinol concentration of not more than an amount of the plant Cannabis sativa L. and any part of such plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9-tetrahydrocannabinol concentration of not more than an amount determined by the department in regulation, used or intended for human or animal consumption or use for its cannabinoid content, as determined by the commissioner in regulation. Hemp extract excludes industrial hemp used or intended exclusively for an industrial purpose and those food and/or food ingredients that are generally recognized as safe by the department, and shall not be regulated as hemp extract within the meaning of this article.

ARTICLE 33: CONTROLLED SUBSTANCES. TITLE 1

• 3302

21. “Marihuana” means all parts of the plant of the genus Cannabis, 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.

The term “marihuana” shall not include:

(a) the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, 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;

(b) hemp, as defined in subdivision one of section five hundred five of the agriculture and markets law;

(c) cannabinoid hemp as defined in subdivision two of section thirty-three hundred ninety-eight of this chapter; or

(d) hemp extract as defined in subdivision five of section thirty-three hundred ninety-eight of this chapter.

• 3306 Schedules of controlled substances

Schedule I. (d) Hallucinogenic substances.

(13) Marihuana.

(21) Tetrahydrocannabinols. Synthetic equivalents of the substances contained in the plant, or in the resinous extractives of cannabis, sp. and/or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity such as the following:

/\1 cis or trans tetrahydrocannabinol, and their optical isomers

/\6 cis or trans tetrahydrocannabinol, and their optical isomers

/\3, 4 cis or trans tetrahydrocannabinol, and its optical isomers

(since nomenclature of these substances is not internationally standardized, compounds of these structures, regardless of numerical designation of atomic positions covered).

• 3307 Exception from schedules

5. The commissioner may by regulation or emergency regulation, reclassify any compound, mixture or preparation containing any substance listed in Schedule I of section three thousand three hundred six of this title as a Schedule II, III, IV or V substance, or exempt it from this article, if that same compound, mixture or preparation is redesignated or rescheduled other than under Schedule I under the federal Controlled Substances Act, or deleted as a controlled substance under the federal Controlled Substances Act. If the commissioner acts under this subdivision and does not exempt the compound, mixture or preparation from this article, he or she may only reclassify it to a newly created subdivision in the same numbered schedule or a higher numbered schedule than to which it is redesignated or rescheduled under the federal act.

Is Delta-8 a Controlled Substance in New York?

New York specifically excluded "hemp" from the section of the Controlled Substances Act that addresses marijuana, but has expressly banned Delta-8-THC products made from hemp. Therefore, it is unclear how the state classifies Delta-8-THC products. 

Delta 8 THC Possession Limits in New York

Delta-8-THC is not legal in New York so there are no possession limits set forth by New York law.

Keep in mind that basic lab testing checks only for tetrahydrocannabinol, meaning that extensive lab tests are needed to differentiate between Delta-8 content and Delta-9 content when proof of legal possession is needed.

Is Cannabis (Delta 9 THC) Legal in New York?

Medical cannabis has been legal in New York since the signing of the Compassionate Care Act in 2014. This new law allowed qualifying patients and their caregivers to access medical cannabis products at state-licensed dispensaries.

In 2021, New York legalized cannabis for adult use. Residents over the age of 21 can legally buy and possess up to 3 ounces of cannabis for recreational use. 

Where to Buy Delta 8 in New York?

Because Delta-8-THC is not legal in New York, you may not be able to find it in stores or buy it online from the state. 

Many states in the area have legalized Delta-8 production, including Vermont, Massachusetts, and Pennsylvania. That means that you may find a varied supply of products in the local area, but you should be wary of dicey state regulations. It may not be legal to transport Delta-8 over state lines. 

It's advisable to proceed with caution when choosing a Delta-8 distributor. While you can likely find various hemp products in local stores, there may be benefits to buying Delta-8 online. One reason is that you can 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 Vida Optima, 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 before you buy, or you can read our “What is Delta-8-THC?” guide to learn everything you need to know.

Do You Have to Be 21 to Buy Delta-8 in New York?

There are no state regulations that place age restriction on the purchase of hemp-derived products. Retailers have the right to determine age limits for the purchase of Delta-8 products, but many retailers require consumers to be at least 21 years of age.

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 New York 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. “New York Article 29 Section 505” https://www.nysenate.gov/legislation/laws/AGM/505
5. “New York Article 29 Section 520” https://www.nysenate.gov/legislation/laws/AGM/520
6. “New York Article 33 Section 3302” https://www.nysenate.gov/legislation/laws/PBH/3302
7. “New York Article 33 Section 3306” https://www.nysenate.gov/legislation/laws/PBH/3306
8. “New York Article 33 Section 3307” https://www.nysenate.gov/legislation/laws/PBH/3307
9. “New York State Medical Marijuana Program Laws and Regulations” https://www.health.ny.gov/regulations/medical_marijuana/regulations.htm
10. “New York Marijuana Laws” https://statelaws.findlaw.com/new-york-law/new-york-marijuana-laws.html