Is Delta-8-THC Legal? A State By State Guide to Delta-8 Laws

by Kat Austin February 15, 2021 7 min read

Is Delta-8-THC Legal? A State By State Guide to Delta-8 Laws - Vida Optima™

An in-depth look at federal hemp laws confirm that Delta-8-THC is legal, but that doesn’t mean it’s legal in every state. Just like with CBD, Delta-8-THC laws vary across the nation. So, where is Delta-8-THC legal? And how can you access it from legal states?

Luckily, the majority of states have taken the steps necessary to remove hemp derivatives from their Controlled Substances list. That means Delta-8 is legal in many states across the nation, and you can likely access it in local stores and online.

Here’s what you should know about federal and state Delta-8 laws before you buy.

And if you're looking for legal Delta-8-THC products you can buy online, check out our Elev8 Collection.

Disclaimer: We’re always working to stay informed on the latest Delta-8 laws and research. However, Delta-8 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 information is not intended to be used as legal advice or as a substitute for legal aid.

Table of Contents
Delta-8-THC Laws By State
Why is Delta-8 Legal by Federal Law?
Is Delta-8-THC a Controlled Substance?
Factors that Affect State Delta-8 Laws
Where to Buy Delta-8 Near You

Key Takeaways

  • Delta-8 is legal by federal law, but state hemp laws vary.
  • In order for Delta-8 to be legal in a state, the state must have legalized hemp using a definition similar to the federal definition. State law must also remove hemp derivatives from it’s list of Controlled Substances.
  • Most states have taken the steps necessary to legalize Delta-8, whether intentionally or just by default. In these areas, Delta-8 may be accessible, but the market may not yet be well regulated.
  • In states where Delta-8 is legal, you can buy Delta-8 online to access a wider variety of high-quality products.

Delta-8-THC Laws by State

Where is Delta-8-THC legal? Click on your state below to find out more about local Delta-8-THC laws:





























New Hampshire

New Jersey

New Mexico

New York

North Carolina

North Dakota





Rhode Island

South Carolina

South Dakota







West Virginia



Why is Delta-8 Legal by Federal Law?

Delta-8's federal status hasn’t always been clear, and it was technically listed as a Schedule I substance alongside Delta-9-THC for well over a decade. When the Hemp Farming Act of 2018 became law, it included legal implications that changed Delta-8s scheduling status.

A federally legal hemp plant where Delta-8-THC materials are sourced.

Under this legislation, hemp is legal, and is defined as any Cannabis sativa L material containing less than 0.3% Delta-9-THC, including cannabinoids, extracts, acids, isomers, salts, salts of isomers, and any other derivative.

The new laws are lengthy and include details about hemp licensing, requirements for state USDA hemp plans, and regulations for those who grow hemp as an agricultural commodity. The bill includes one section that specifically opened the gate to Delta-8-THC legalization:

Section 12619b of the 2018 Hemp Farming Act specifically addresses tetrahydrocannabinols in hemp to remove them from the Controlled Substances Act.

As the new laws came to light, many sources argued that Delta-8-THC was still prohibited under the clause that prohibits all “synthetic cannabinoids.”

Technically, Delta-8 is often made from CBD through a synthesization process of sorts. However, the process used isn't a true synthesization process, and the most common Delta-8-THC manufacturing process doesn't quite match what the FDA considers to be synthesization.

The conversion process between CBD and Delta 8 is not synthetic, rather it relies on a transfer of isomers, a process called isomerization. Delta-8-THC naturally exists as an "isomer," in the hemp plant, and is therefore covered by the blanket definition to legalize hemp and hemp derivatives.

Delta-8 is a naturally occurring component found in hemp, unlike other synthetic cannabinoids which contain no actual cannabis material at all.

For instance, types of cannabinoids that the DEA carve out as “synthetic” are liquid agents that are often applied to plant material, like K2 and Spice, which are both illegal.

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.

Is Delta-8-THC a Controlled Substance?

Thanks to Section 12619b of the 2018 Hemp Farming Act, tetrahydrocannabinols in hemp are specifically exempt from scheduling. That means that Delta-8-THC that is made from legal hemp material is not a Controlled Substance by federal law.

On the other hand, each state governs its own hemp laws and has its own legislation to clarify what counts as a controlled substance. In many states, hemp derived cannabinoids are all exempt from scheduling, but some states do still classify Delta-8-THC as a Controlled Substance.

Check out the Delta-8-THC laws by state below to find out if Delta-8 is classified as a controlled substance near you.

Factors that Affect State Delta-8 Laws

We mentioned that Delta-8-THC laws vary by state, but the nature of Delta-8’s legality can really be narrowed down to two important factors. In order for Delta-8-THC to be legal in any state, the state’s laws must:

  • legalize hemp using a definition similar to the one used by federal law. The definition may include varying quantities of Delta-9-THC, but must include hemp derivatives like cannabinoids, isomers, and salts of isomers.
  • Remove hemp-derived THC from the Controlled Substances list in the state, or otherwise remove Delta-8 from the state’s list of prohibited substances.

In general, Delta-8-THC is legal in states where both of these conditions have been met.

Of course, even in states where Delta-8 has been legalized, other state laws may impact the hemp market, and therefore impact the availability and quality of Delta-8 products in the area. Local hemp laws generally include the following:

Licensing and Manufacturing Laws

Part of each state's responsibility within the legal hemp market is submitting a hemp agriculture plan to the USDA for approval. To date, most states have submitted a plan, and a select few are still waiting for approval.

The USDA hemp plan submitted by each state must include information about the licensing process for hemp growers, as well as the testing procedures that the state will use to ensure hemp material is below the federal threshold for delta-9-THC content.

Every states' hemp plan will also designate a state department, such as the Department of Agriculture, to oversee each program. This is the department you should contact to get the most accurate, up to date hemp laws in your state.

Manufacturing and licensing laws vary greatly by state. Some states require growers, manufacturers, and sellers to each hold an individual license. Others simply require growers to be licensed through the state program, and otherwise do very little to regulate the manufacture and sale of Delta-8-THC products.

While these licensing laws don't typically affect consumers directly, they can affect the availability and quality of Delta-8 in your state. In general, most testing requirements only concern the legal Delta-9-THC content, and only a handful of states have quality regulations in place. That means you should take special precautions and carefully vet your Delta-8 brand before you buy.

Seller Laws

As we mentioned, some states require sellers to be licensed before they can distribute hemp or Delta-8 products. In other states, anyone can sell hemp products so long as it is made according to legal guidelines.

Typically, seller laws don't affect consumers unless there are age limits in place in your particular state.

Possession Laws

In general, there is no possession limit in place for legal hemp products. However, hemp products with more than the legal amount of Delta-9-THC are considered cannabis products and are heavily restricted in many states. Even in states where cannabis is legal, Delta-8 products derived from marijuana are typically subject to strict possession laws.

Formula Restrictions

A Delta-8 vaporizer, one of the most popular product types where Delta-8 is legal.

The most common way that state laws affect consumers is through formula restrictions. In some states, hemp and Delta-8 are both legal, but hemp derived cannabinoids are classified as adulterants. This means that it cannot be legally added to food, drinks, or dietary supplements.

While this ruling is in line with the FDA's current stance on CBD as a food additive, some states have specifically legalized the use of CBD in foods and drinks. Whether or not these same laws apply to Delta-8 as a food additive depends on the specific language used in the state’s law.

Generally speaking, these formula restrictions are aimed at manufacturers and sellers and don't affect consumers directly. In other words, there may be no penalty for possession of these products, but you may not be able to buy them in every state.

Special THC Laws

Finally, some states have legalized hemp, but still maintain complete bans on THC. That means that hemp may be legal, but only if it contains no THC at all. In other words, these states allow the sale of certain hemp products, like CBD isolate, but not Delta-8 or any other product containing any level of tetrahydrocannabinols, like full-spectrum CBD.

Where to Buy Delta-8 Near You

Local laws may impact Delta-8-THC availability in your area, and hemp regulations are still shaky across the country. There are, of course, some hemp-friendly, well-regulated states where Delta-8-THC can be found in local stores.

Luckily, you aren’t limited to the Delta-8 products near you. The USPS has declared that hemp products are legal to ship through the mail, so you may be able to find better quality products when you buy Delta-9-THC online.

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 “What is Delta-8-THC?” to learn more.

Check out our Elev8 Collection to find Delta-8-THC products that ship to any area where D8 is legal.

Vida Optima Elev8 Gummies

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