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Member Blog: Where Is Delta-8 THC Legal and Where Is It Banned? CBD Oracle’s Map Has the Answers

Delta-8 THC is probably the most controversial cannabinoid on the planet right now. With the 2018 Farm Bill being widely considered to have removed the THC isomer from the federal list of controlled substances, hemp and CBD companies quickly found a use for their excess CBD isolate. But if you’re considering selling delta-8 THC, federal law is only a part of the picture, and at state level, you have a patchwork of different laws and regulatory schemes to contend with.

This is why CBD Oracle, working alongside Neil Willner co-chair of the Cannabis Group at Royer Cooper Cohen Braunfeld, has produced a state-by-state map of delta-8 THC’s legality based on extensive reviews of state law. If you want to know what’s going on with delta-8 THC in a specific state, this is one of the best resources around to get the answer you’re looking for. 

Delta-8 THC Is Legal in 22 States and 1 District With Limited Regulation 

Despite the controversy surrounding delta-8 THC, it remains legal in 22 states and 1 district, with only limited regulation. This covers the following states:

  • Alabama*
  • Arizona
  • Arkansas
  • Florida*
  • Georgia (?)
  • Illinois
  • Indiana (?)
  • Kentucky*
  • Maine
  • Maryland* (?)
  • Missouri
  • Nebraska
  • New Jersey
  • New Mexico
  • North Carolina
  • Ohio
  • Oklahoma
  • Pennsylvania (?)
  • South Carolina (?)
  • Texas (?)
  • Washington D.C.
  • Wisconsin
  • Wyoming*

Here, a * beside the state’s name means they’ve instituted age restrictions, preventing anybody aged 21 or under from buying delta-8 THC. States marked with (?) are currently involved in legal action about the status of delta-8 THC.

In the majority of these cases, state law basically follows the blueprint laid down by the 2018 Farm Bill with few or no additional rules. In fact, only a handful of states (Alabama, Florida, Kentucky, Maryland and Wyoming) have even passed laws preventing youth from buying delta-8 THC. 

Legal actions are ongoing in several states, with the situation being slightly different in each. For instance, in Maryland, the hemp industry won a temporary injunction against the state, preventing the state from enforcing the provisions of House Bill (HB) 556 which relate to hemp until the action is resolved. The bill originally made it so that delta-8 THC products (and most CBD) could only be sold in licensed marijuana dispensaries, but this was deemed by the court to create a monopoly. 

Delta-8 THC Is Banned in 17 States and Severely Restricted in 7 More

For every state where delta-8 THC is de facto legal, there is another state which has either banned or severely restricted the cannabinoid. In total, CBD Oracle’s analysis shows that delta-8 THC is banned in 17 states and severely restricted in 7 more. The states with bans are:

  • Alaska
  • Colorado
  • Delaware
  • Hawaii
  • Idaho
  • Massachusetts
  • Mississippi
  • Montana
  • Nevada (technically could be approved for marijuana industry)
  • New York (isomerization banned, could theoretically be sold in adult use)
  • North Dakota
  • Oregon
  • Rhode Island
  • Utah (possible in medical industry)
  • Vermont
  • Washington
  • West Virginia

And there are severe restrictions – limiting all THCs to be under 0.3% for hemp products, unless otherwise noted – in the following seven states:

  • Iowa
  • Kansas
  • Louisiana (all THCs must be under 8 mg per serving and 1% by dry weight)
  • Michigan (all THCs under 0.3% and only marijuana-derived delta-8 allowed)
  • Minnesota (all THCs under 0.3% and less than 5 mg per serving)
  • New Hampshire
  • Virginia (2 mg serving limit or >25:1 CBD:THC ratio)

Exactly how delta-8 THC is banned or restricted varies by state. For instance, while Colorado bans the “isomerization” process used to make delta-8 from CBD, Idaho basically bans anything that contains THC at all, even if it’s just CBD with trace, federally-acceptable levels of delta-9 THC. For the restricted states, most require that all THCs total to under 0.3% by dry weight, which is technically possible for a delta-8 THC product to meet, but essentially none do. 

The analysis also revealed that – just like with marijuana – making delta-8 THC illegal doesn’t automatically remove it from a community. In Hawaii and Mississippi, for instance, despite state law banning delta-8 THC, it is still openly sold.

Only Three States Have Substantial Regulations on Delta-8 THC

In California, Connecticut and Tennessee, delta-8 THC is legal but has substantial regulations in place. In California and Connecticut, delta-8 THC is treated as marijuana and is sold as part of the adult use industry. This automatically institutes a wide range of requirements on the cannabinoid, including rules on testing and labeling to ensure safety and transparency for consumers.

Tennessee is the unique case here, where delta-8 THC is regulated as a “hemp-derived cannabinoid” and is legal to sell to adults aged 21 and over. Senate Bill (SB) 378 includes requirements for testing for contaminants, informative labeling and marketing which does not target youths, as well as a 25 mg serving size limit. 

The Patchwork of Laws and the Future of Delta-8 THC

The key take-away for sellers of delta-8 THC is that current state regulations are a patchwork, making it very difficult to navigate for even the most responsible of companies. The product you can sell in Arizona without issues is probably not legal in Kansas, and would require batch testing and more to be sold in Tennessee. 

This uncertainty may be resolved by the upcoming 2023 Farm Bill, but even this isn’t a sure thing. While the 2018 Farm Bill opened the door to a whole host of products and simply assumed (incorrectly) that the FDA would step up to regulate finished products, the new version might offer the clarity that was lacking. However, it’s just as likely that the bill will redefine “hemp” in a way that excludes delta-8 THC by default. 

Pretty much the only thing you can depend on is that you’ll need to keep a close eye on state laws in the coming year. CBD Oracle’s map will be continuously revised to reflect the current legal reality and help responsible hemp companies remain compliant.
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Lee Johnson is the senior editor at CBD Oracle, and has been covering science, vaping and cannabis for over a decade. He focuses on research-driven deep dives into topics ranging from medical uses for CBD to industry and user statistics, as well as general guides and explainers for consumers.

CBD Oracle is a cannabis consumer research company working to improve the safety and transparency of cannabis and hemp products, which publishes in-depth scientific, legal and consumer analyses on cannabis and cannabinoids.

Committee Insights | 9.28.22 | Cannabis Ballot Initiatives in the November 2022 Election

In this edition of our NCIA Committee Insights series originally aired on Wednesday, September 28, 2022 members of NCIA’s State Regulations Committee convened a panel of government affairs, business development and licensing experts for an in-depth discussion focusing on cannabis ballot initiatives up for a vote this coming November.

They provided a detailed overview on the status of each campaign so that you’ll learn how best to position yourself for success and what you can do to help push these efforts across the finish line. If you’re considering business Arkansas, Maryland, Missouri either of the Dakotas then this session is specifically geared for you.

At the conclusion of the discussion they hosted a moderated Q&A session to provide NCIA members an opportunity to interact with leading minds from the cannabis regulatory and licensing space, join today to contribute to future conversations!

Learning Objectives:

• Provide practical information to NCIA members about the cannabis ballot initiatives and potential new business opportunities.

Presentation Slide Deck: https://bit.ly/3RD8ivn

Panelists:

Sumer Thomas
Director of Regulatory Operations
Canna Advisor

Nicola Batten
CEO & Founder
koLaB Consulting

Larry Luksha
Government Relations & Business Development
Veritec Solutions

Joseph Smith
Senior Managing Associate
Thompson Hine LLP

NCIA Committees: Spring 2020 Update On Achievements And Projects

NCIA’s member-driven committees are an opportunity for individuals from NCIA member companies to get directly involved in specific industry issues and sectors. These volunteer-driven efforts engage members’ expertise and passion to drill down in those areas to effect change, provide professional development opportunities, and develop best practices and guidelines that will shape the future of our industry.

We recently checked in with these various committees to learn more about what they’re up to and what projects they’re working on this term. Get updated on their activities below.


Risk Management & Insurance Committee (RMIC)

The RMIC has recently contributed to several NCIA white papers and educational webinars. They are currently working on an insurance manual. The committee has divided into sub-committees responsible for managing white papers, webinars, and the manual. 

Scientific Advisory Committee (SAC)

SAC’s vision is to disseminate educational materials to NCIA members on scientific topics in the cannabis industry and to advise on other NCIA initiatives, ensuring that any formal recommendations produced are scientifically sound, sustainable, and legitimate. This term, SAC published a blog discussing why everyone should know about the endocannabinoid system.

SAC is working on other pieces addressing topics such as the recent vape illnesses from a physician’s perspective, indica versus sativa designation, how cannabis can help the opioid crisis, common scientific myths confusing the industry, and budtender and consumer education about the endocannabinoid system.

SAC is also developing a webinar that discusses what should be on a label, how to read a label, and how to associate what’s on a label with either statements on efficacy or marketing/branding.

Cannabis Cultivation Committee (CCC)

The committee has recorded two podcast episodes for NCIA’s Cannabis Industry Voice Podcast. The first was a Cultivation Best Practices Roundtable, hosted by Noni Goldman of the CCC. In that episode, Cody Hitchcock of Smokey’s 420 and James Cunningham of Fog City Farms were interviewed to shed light on their different growing styles and techniques, focusing on the ways that they implement sustainability in their operations.

The second soon-to-be-released interview was with High Times’ new CEO Stormy Simon, and was hosted by CCC Chair Mo Phenix and member Noni Goldman. This interview explored Stormy’s history and how she got to where she is today, as well as what High Times is up to, and where Stormy sees the industry going.

More podcasts to come in the next couple of months from the CCC! Keep an eye out for an episode or two on regenerative agriculture.

Packaging & Labeling Committee (PLC)

The PLC sub-committees have each contributed to a blog or presentation up to this date. The Sustainability sub-committee has worked with Kaitlin Urso and team in regards to their White Paper. A panel discussion proposal has been submitted for future NCIA conferences. 

NCIA’s Northeast Cannabis Business Conference in Boston (February 2020) Panel Discussion on the Future of Cannabis Packaging went great!

State Regulations Committee (SRC)

NCIA’s State Regulations Committee has continued to produce content to help educate and inform members on the latest developments in the world of state regulation of cannabis. As the industry’s law and regulations change quickly across the country, the SRC members stay ahead of the curve and share their insight in a variety of forms. These projects include panel presentations at NCIA conventions, published blogs, and interactive webinars. In this quarter, they published three blogs, produced one webinar, presented on two panels, and participated in an NCIA summit.

Blogs Published:

The Social Consumption Sub-Committee published “California Social Consumption Leads the Way” by Debby Goldsberry.

The Interstate Commerce Sub-Committee published two blogs: 

The first blog “Ending the Ban on Interstate Commerce” was published on January 15, 2020. 

Shortly thereafter, it followed-up with “Interstate Cannabis Commerce Will Benefit Public Safety, Consumer Choice, and Patient Access.”

Another sub-committee that aims to provide advice on governmental relations published the blog “Working With Your Local Government as a Cannabis Cultivator.

Webinars:

As the committee strives to keep everyone updated on burgeoning legal topics, the SRC committee presented a webinar on Michigan, a newly regulated market. The webinar provided information on this key Midwestern state, “Michigan’s Adult-Use Market – What Comes Next?

Conferences:

SRC members also traveled from across the country to share their expertise on panel sessions at NCIA’s Northeast Cannabis Business Summit in February 2020 in Boston.

The Social Equity Sub-Committee leaders, Erin Fay, Chris Jackson, and Margeaux Bruner provided helpful insight during their session, “What You Need To Know For Winning Applications and Successful Operations That Promote Diversity and Inclusion.”

Sean Donahoe and Gabriel Cross of the SRC’s Interstate Commerce Sub-Committee presented on the issues surrounding interstate commerce and strategies for preparing for this anticipated change in the cannabis industry.

Also, SRC members participated in the NCIA’s summit about tackling the illicit market.

The State Regulations Committee is excited about its work and continues to stay knowledgeable about the ever-changing legal and regulatory landscape. Their projected work includes a webinar on the Illinois adult-use market and a wide range of written projects. Stay tuned!

Banking & Financial Services Committee (BFSC)

The committee’s vision is to provide the NCIA member base with current and actionable information related to Banking and Financial Services in the State legal cannabis industry.

They have implemented monthly newsletters for the member base and have been extremely active in response to the proposed federal legislation regarding banking and the cannabis industry.

Human Resources Committee (HRC)

The Committee’s vision is to provide best practices in all disciplines of Human Resources to NCIA members. They have worked on a couple of blogs this year around the recent reduction in force trend and will be releasing a few blogs providing some recommendations for how cannabis employers can navigate CV-19 when it comes to their workforces.

The HR Committee is working on a very exciting case study. They are looking forward to releasing the first few modules of it this summer!

Marketing & Advertising Committee (MAC)

The MAC coalesces the talents of 20 of the industry’s top-tier marketing and communications professionals around three focus areas: Education, Advertising Access and 2020 political goals. The committee uses their personal, professional and business skills and networks to help build a responsible, legal cannabis industry. The committee is producing best practices, webinars, workshops and social media campaigns to aggregate and generate support from NCIA members, the public, media, government and business leaders.

The MAC Education Subcommittee has focused its energies on developing a Speakers/Expert Directory with a goal to launch by year-end.

The 2020 Subcommittee has created its first infographic covering Oklahoma’s 2020 ballot initiatives; infographics for additional states with legalization initiatives on the ballot this year will follow soon.

The Advertising Access Subcommittee is adding more states (as they come online) to their overarching list of “Do’s and Don’ts” for compliant cannabis advertising. Those are pending editing and legal review and will be published on the NCIA website soon thereafter.

The committee is also working on upcoming webinars including “Advertising Best Practices.” 

Cannabis Manufacturing Committee (CMC)

The Cannabis Manufacturing Committee is focusing on reviewing existing business practices and state regulations of concentrates, topicals, vaporizers, and edibles ensuring the manufacturing sector is helping shape its destiny.

Their first informative blog using lessons learned from the e-cig sector exists in on-going discussions with NCIA’s Safe Vaping Task Force. 

They are also working on their second publication, “Facts About Current Good Manufacturing Practices (cGMPs) And Their Role In The Cannabis Industry” which will be a resource for essential businesses.

In addition to the work the CMC is carrying out, they are collaborating with other committees to help create an NCIA resource library.

The CMC Testing sub-committee is working on writing blogs about “Positives of Testing” (from the operator’s view), and “Nomenclature: Cannabis Nomenclature Register” for publication.

Retail Committee (RC)

Members of the Retail Committee attended NCIA’s Northeast Cannabis Business Conference in Boston in February 2020 to participate in an educational panel on Retail 101. The committee has an upcoming webinar in April: “Retail: Tips and Best Practices” which will include 4 panelists that are currently license holders or working in licensed dispensaries in 3 different states (CO, CA, WA), and will also address some tips and best practices for the current CV-19 climate.

Facilities Design Committee (FDC)

Committee member David Vaillancourt of The GMP Collective appeared on NCIA’s weekly podcast, NCIA’s Cannabis Industry Voice, in February 2020 to discuss GMPs (Good Manufacturing Practices) in an episode titled “Revolutionizing How Cannabis Producers Achieve Success.”

 

Cannabis State Applications: Don’t Forget Your Security Plans

A United States marijuana production license from 1945
A United States marijuana production license from 1945

There are three things in business you should never do:

  1. Be your own doctor
  2. Be your own lawyer
  3. Write your own State Cannabis Application

Having been involved in the cannabis industry the last few years, I have seen many businesses and entrepreneurs who have a strong desire to get into this industry. Some want to own cultivation centers and grow marijuana, others want to run a dispensary and sell the marijuana, and then there is another more ambitious group who wants to do both. I think this is great and I encourage all to get involved in this growing and ever-changing industry.

fillingoutformsBut before you buy your cannabis equipment and hire a staff, you will first need for your state to give you a license. In order to get this license, you will need to apply to the state for review and approval. Your application can range from 300 to 2,000 pages and will cover a wide range of operational programs, including a well-defined security plan.

The primary purpose of a cannabis security plan is to provide a safe and secure environment for your employees, patients and visitors. Your security plan will cover facility security, security surveillance, product security, and policies & procedures.

Just like a doctor who specializes in a disease or a lawyer who only deals in certain types of the law, you want to make sure the person or company
who writes your application has written previous cannabis state applications. This is not the time to give a lawyer or accountant friend, ex-DEA agent, or a retired police chief the chance to learn how to write a cannabis application. Remember, you may only get one chance at a cannabis license and the state regulatory agencies are not very forgiving when it comes to incomplete or poorly written cannabis applications.

So make sure your cannabis application is the best it can be and look for a professional who specializes in this type of application writing.

I wish you the best of luck in this new and exciting industry.

Watch this YouTube video of Tony Gallo from Sapphire Protection speaking about security at CannaStock on September 26, 2014.

Tony Gallo is the Senior Director of Sapphire Protection (www.sapphireprotection.com) with over 30 years in the Loss Prevention, Audit, Safety, and Risk/Emergency Management fields. Tony has a Bachelor of Science degree in Criminal Justice from New Jersey City University and is a member of Americans for Safe Access and National Cannabis Industry Association. Tony is considered one of the leading authorities in cannabis and financial loan service, retail loss prevention, and security. Contact Tony at tony@sapphireprotection.com and follow him on Twitter at @SapphireProtect.

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