Long story short, no. Delta 8 is illegal in New York state however, If you do a quick search in Google asking, " Is Delta 8 legal in New York", you will find that you'll get conflicting answers.
Even though the internet provides inconsistent information, it is clear that the sale, distribution, production, and manufacturing of hemp-derived Delta-8 products are not allowed in New York state under current regulations. In fact, up until 2021 hemp-derived CBD had strict laws surrounding it.
This may come as a shock to many since the state has passed marijuana legalization and possession for adults over 21. However, the regulations around the possession and use of Delta-8 in the state remain unclear to many. Admittedly, far less is known about Delta 8, which makes some unsure about its safety.
Now that we've answered your question of "Is Delta 8 legal?", let's look at the history surrounding it and discuss some legal alternatives for those looking for products similar to Delta 8.
Delta-8 THC Legal History in New York
Delta 8 products derived from hemp haven't always been considered controlled substances in New York. The ban on Delta 8 didn't happen until November 2021, when the New York Cannabis Control Board (CCB) established regulations for the cannabinoid hemp program, which was created by Governor Andrew Cuomo.
The program is aimed at safeguarding both consumers and farmers. While the state law allows cannabinoid hemp flower products and hemp-derived CBD, it does not allow the marketing of hemp flower products intended to be smoked or that are in the shape of a pre-roll or cigarettes and cigars.
Hemp vapes are allowed as long as they include health warnings and are only for individuals aged 21 or older. The New York Cannabis Control Board stated that Delta 8 products would require regulations through a future adult-use program.
Delta 8 Legal Timeline for New York
Taking a look back at the history of cannabis products in New York you will find that New York first launched its Industrial Hemp Agricultural Research Pilot Program in 2015, this limited hemp usage to primarily a small group of educational institutions and did not fully address complete hemp products.
A few years later in 2018, the federal Farm Bill was passed, defining hemp based on its cannabinoid content and removing it from the list of controlled substances at the federal level. Shortly following this, in 2019, Governor Cuomo signed S6184, and A7680 into law which established and addressed the regulatory concerns on things like cannabis testing requirements for manufacturers and growers. Many New Yorkers believed that Delta 8 was legal based on this.
State lawmakers completed another round of regulations throughout 2020 through 2021 which ultimately banned Delta 8 and other THC isomers derived from hemp plants. These new regulations started with the Department of Health (DOH) taking control of the Cannabinoid Hemp Program in October 2020. Shortly followed by the Office of Cannabis Management (OCM) passing state law to legalize cannabis for recreational use along with new proposals to explicitly ban Delta 8 in May 2021.
The Cannabis Control Board approved OCM's proposed ban of hemp-derived compounds like Delta 8 in November 2021 which left their regulation up to the state's marijuana programs. There has not been any following legislation to change the situation of Delta 8 since except for new guidance from OCM on what hemp products are and are not permitted for the industry.
Is Delta-8 Legal at the Federal Level?
Under current laws, each state has the authority to regulate cannabinoids. However, in 2018, the federal government excluded hemp, as defined in subdivision 1 of section 505 of the Agriculture and Markets Law, from the definition of marijuana making Delta 8 no longer considered a controlled substance.
The passing of the 2018 Farm Bill is what officially legalized Delta 8 and all other isomers of industrial hemp plants into federal law as long as the THC content of the hemp extracts remained less than 0.3% Delta 9 THC on a dry weight basis.
The argument is that Delta 8 THC is a natural derivative of the hemp plant, and therefore legal under the bill. The 9th Circuit Court of Appeals has also weighed in on the matter. However, the FDA has the authority to regulate hemp in food products and dietary supplements, and it has stated that Delta 8 THC is not an approved ingredient for food.
Is Delta-8 Legal in New York to Sell?
In New York, Delta 8 THC products are not allowed for sale. The Cannabinoid Hemp Regulations (Section 114.8 (a)(11), page 24) prohibit products that involve "synthetic cannabinoids, or cannabinoids created through a structural isomerization process, including Δ8-tetrahydrocannabinol and Δ10-tetrahydrocannabinol."
Since Delta 8 THC occurs in trace amounts in the hemp plant, isomerization is required to produce enough Delta 8 for commercial use, which effectively bans all hemp-based Delta 8 products. However, the rules surrounding the use and possession of Delta 8 THC are still unclear.
Can You Buy Delta-8 in New York?
The purchase of Delta 8 THC products is illegal in New York, both online and in physical retail stores. While some online Delta 8 companies have stopped accepting orders from New York residents, there have been reports that Delta 8 products are still being sold at certain physical retail stores in the state.
As of now, the state doesn't seem to have ruled out the possibility of selling Delta 8 and other THC isomers through some of the existing marijuana sales channels.
Delta-8 Alternatives You Can Legally Buy in New York
In New York, purchasing Delta 8 THC products is not legal, but purchasing hemp-derived Delta 9 THC products is theoretically legal as long as they are not created through isomerization like Delta 8.
However, the New York Office of Cannabis Management (OCM) recently warned hemp companies in the state that high-THC hemp products pose a serious public health risk, and emergency regulations are being developed to address the issue and clarify permissible THC limits for hemp products.
This means that the legal availability of Delta 9 THC products may be short-lived. Products like D9o, Delta-10, and THC-O are banned under the cited law, but HHC, a natural cannabinoid produced through functionalization, is likely permitted under current regulations. Cannabis itself is legal to buy, possess, and use in New York.
Is Recreational Marijuana Legal in New York?
Yes, recreational marijuana is legal in New York. On March 31, 2021, Governor Andrew Cuomo signed the Marijuana Regulation and Taxation Act (MRTA) into law, legalizing recreational cannabis use for adults aged 21 and over.
The law also allows for the possession and cultivation of marijuana for personal use and creates a legal framework for the regulation and taxation of recreational cannabis sales in the state.
However, there are still some restrictions on where and how much you can possess. Currently, New Yorkers don't need a medical marijuana card or a doctor's prescription to legally consume or carry up to 3 ounces of marijuana.
Is Medical Marijuana Legal in New York?
Yes, medical cannabis is legal in New York. In 2014 The New York State Medical Marijuana Program was established, and it allows registered patients with qualifying conditions to obtain a medical marijuana card through state-licensed dispensaries.
Patients must have a certification from a registered practitioner in order to participate in the program. Qualifying conditions include but are not limited to cancer, chronic pain, HIV/AIDS, ALS, Parkinson's disease, and multiple sclerosis. The program also allows for the use of medical cannabis as a substitute for opioids, which will hopefully combat the opioid addiction crisis.
Qualifying patients must be adults 21 years and older and can possess up to 3 oz of cannabis. The State Department of Labor has even provided guidance that prevents New York employers from drug testing workers for marijuana.
Frequently Asked Questions
How old do you have to be to buy Delta 8 in New York?
Age restrictions don't specifically apply to Delta 8 products, since they are not permitted in the state. However, other hemp-derived products, including inhalable products, are subject to age restrictions. These products can only be bought by adults over the age of 21.
Violating this restriction may result in a maximum civil penalty of $1,000 for the first offense.
Can you use Delta 8 in public in New York?
It is unlikely you would be penalized for consuming Delta 8 in public in New York, as the legality of its possession is unclear. However, just know that violating the clean air rules may result in a fine of up to $2,000.
Can you travel to New York with Delta 8 THC?
It is not advisable. As the legal status of Delta 8 in New York is uncertain, there is a risk associated with carrying Delta 8 while traveling to the state.
Can you use Delta 8 and drive in New York?
Delta-8 THC is considered an intoxicant under state law on driving while intoxicated.
Therefore, it is illegal to drive under the influence of Delta 8 in New York. If caught, for the first violation, you're looking at a fine ranging from $500 to $1,000, up to a year in jail, and a six-month license revocation. Subsequent offenses within 10 years have even higher penalties.
Is CBD legal in New York?
Cannabinoids, namely CBD lack the intoxicating qualities that some cannabinoids have. Therefore, New Yorkers are able to legally buy and use CBD products from any of the leading CBD brands.
Closing Thoughts: The Future of Delta-8 in New York
State lawmakers have clarified that Delta 8 products are not approved in New York City, citing safety and regulatory concerns. Worse yet, there are no solidified plans to allow its use, possession, or sale.
While the immediate future of Delta 8 in New York does not look good. The good news is that New Yorkers do have plenty of other alternative options besides Delta 8 that do not use a synthetic process to produce such as hemp-derived Delta 9 THC and HHC products.
If you live in New York and are searching for Delta 8 alternative products, be sure to check out Everyday Delta for a wide selection of high-quality CBD, THC, and HHC products from brands like Hometown Hero, 3Chi, and many more.
All of these products are third-party tested by laboratories specializing in cannabis testing and analysis to ensure quality and safety.
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