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eNews Headline: Can My Customer Sell Delta 8 THC? 

Question: We have a customer that operates as a CBD retailer. We have done our ‘due diligence’ and it seems they are registered and operating legally. The other day, they put up a large banner that advertised ‘Delta 8 THC Available Here!’ Is it legal to sell Delta 8 THC in my state?

Answer: This is a huge grey area across the nation.

Delta 8 THC is chemically similar to Delta 9 THC and differs by only a double chemical bond.  If consumed as an edible, both Delta 8 THC and Delta 9 THC metabolize into the same compound - 11 Hydroxy THC. If vaped or smoked, Delta 8 THC has a similar effect as Delta 9 THC.

The Delta 8 industry argues that since Delta 8 THC is derived from legal ‘hemp’ as defined by the 2018 Federal Farm Bill, it is legal to produce and sell. Some states, most recently Vermont, have expressly made Delta 8 THC illegal buy banning any THC in excess of 0.3 percent rather than just Delta 9 THC.

Many states define hemp similarly to federal law, as any Cannabis Sativa material containing less than 0.3 percent Delta 9 THC. That includes all cannabinoids, acids, isomers, salts, and salts of isomers. And many states also amended their Controlled Substances Act to remove THC’s derived from hemp. That means Delta 8 THC is – arguably - legal in those states. Here is a breakdown, by state, that have specifically made Delta 8 THC illegal.

Alabama: Legal

Alaska: Delta 8 is illegal in the state of Alaska

Arizona: Delta 8 is illegal in the state of Arizona

Arkansas: Delta 8 is illegal in the state of Arkansas

California: Legal

Colorado: Delta 8 is illegal in the state of Colorado

Connecticut: Legal

Delaware: Delta 8 is illegal in the state of Delaware

Florida: Legal

Georgia: Legal

Hawaii: Legal

Idaho: Delta 8 is illegal in the state of Idaho

Illinois: Legal

Indiana: Legal

Iowa: Delta 8 is illegal in the state of Iowa

Kansas: Legal

Kentucky: Legal

Louisiana: Legal

Maine: Legal

Maryland: Legal

Massachusetts: Legal

Michigan: Legal

Minnesota: Legal

Mississippi: Delta 8 is illegal in the state of Mississippi

Missouri: Legal

Montana: Delta 8 is illegal in the state of Montana

Nebraska: Legal

Nevada: Legal

New Hampshire: Legal

New Jersey: Legal

New Mexico: Legal

New York: Legal

North Carolina: Legal

North Dakota: Legal

Ohio: Legal

Oklahoma: Legal

Oregon: Legal

Pennsylvania: Legal

Rhode Island: Delta 8 is illegal in the state of Rhode Island

South Carolina: Legal

South Dakota: Legal

Tennessee: Legal

Texas: Legal

Utah: Delta 8 is illegal in the state of Utah

Vermont: Legal

Virginia: Legal

Washington: Legal

West Virginia: Legal

Wisconsin: Legal

Wyoming: Legal

The entire Delta 8 THC industry, including producers and sellers, could be an opinion letter or rule away from being shut-down.

Capitol Comments

This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in the rendering of legal, accounting or other professional advice - from a Declaration of Principles adopted by the American Bar Association and a Committee of Publishers and Associations.
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