Is Delta-8 THC Legal in New York?

By | last updated December 20, 2021

Evidence Based 5

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Delta 8 is illegal in New York. It’s one of the few states that explicitly banned delta 8 THC products. But it may be regulated in the same way as adult-use cannabis in the future.

Here’s what you need to know about delta-8 laws in the Empire State.


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New York Delta-8 THC Laws

The New York State Department of Health released new regulations for hemp cannabinoid products in May 2021. Among them, the key change was banning hemp-derived cannabinoids made through isomerization:

All cannabinoid hemp processors shall…(11) not use synthetic cannabinoids, or Δ8-tetrahydrocannabinol or Δ10-tetrahydrocannabinol created through isomerization, in the extraction or manufacturing of any cannabinoid hemp products;

Part 1005 of Title 10 (Health) of the Official Compilation of Codes, Rules and Regulations of the State of New York

This means that hemp-derived delta-8 and delta-10 are effectively illegal in New York.

To give you a quick explanation, an isomer is a compound that has the same molecular formula as another compound but a different arrangement of atoms. 

For example, non-intoxicating cannabidiol (CBD), the most abundant cannabinoid in hemp, is actually an isomer of tetrahydrocannabinol (THC).

That’s why a chemical isomerization process can turn CBD into different forms of THC, like delta-8, delta-9, and delta-10. This is precisely the process used to make delta-8 THC products sold on the market.

These regulations were not 100% official until the New York Cannabis Control Board (CCB) confirmed in November 2021 that delta-8 THC products are banned in the state.

What is Delta-8 THC?

Delta-8 is a form of tetrahydrocannabinol (THC), the cannabis compound that gets you high. Most of the THC in cannabis is present in the delta-9 form, with only trace amounts of delta 8.

That’s why delta 8 is usually made through a chemical process from hemp-derived CBD. Delta-8 has the same intoxicating effects as delta-9 but is noticeably weaker (1).

Why Delta-8 THC is Federally Legal

The 2018 Farm Bill legalized hemp products nationwide, defining hemp as cannabis with no greater than 0.3% of delta-9 THC. By this definition, hemp-derived delta-8 THC is perfectly legal.

As it happens, delta-8 THC is made through a straightforward chemical isomerization process from pure cannabidiol (CBD). Since that CBD comes from hemp, the finished delta-8 THC counts as a legal hemp product. 

Other States Where Delta-8 THC is Illegal

Every state can regulate delta-8 THC in its own way.

Delta-8 THC is currently illegal in 14 states: Alaska, Arkansas, Colorado, Delaware, Idaho, Iowa, Montana, New York, Nevada, North Dakota, Rhode Island, Vermont, Utah, and Washington.

The Future of Delta 8 in New York

Delta-8 THC is illegal in New York but that’s likely to change in the future.

New York legalized recreational cannabis in 2021. And according to a November 3, 2021 meeting of the state’s Cannabis Control Board, delta-8 THC products “are better left to be regulated in the future Adult-Use program.”

That means the board is likely to regulate delta-8 THC in the same way as recreational cannabis once the adult-use cannabis system is fully operational in the coming years.

We’ll have to wait and see if that happens in 2022 or later.

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