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Is Delta-8 THC Legal in NY?

The short answer is no, delta-8 is not currently legal in New York state. If you do a quick Google search for ‘is delta-8 THC legal in NY?’ you will be met with conflicting answers. It can be very confusing, but WayofLeaf is here to address the truth.

Very recently, the State of New York made delta 8 illegal, along with some of the nation’s strictest laws on CBD. It may seem strange, given that the State of New York has permitted marijuana possession for adults over the age of 21.

Admittedly, less is known about delta-8 in comparison to delta-9-THC and the other compounds found in marijuana. Furthermore, many D8 products contain synthesized versions of the cannabinoid, making some unsure about their safety.

Read on to learn the new regulations for delta-8 THC in New York.

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Delta-8 New York: State Law vs. Federal Law

According to current laws on cannabinoids, each State can make up its own mind on the regulations. However, in 2018, the federal government removed hemp, as defined in subdivision one of section five hundred and five of the agriculture and markets law, from the definition of marijuana. Furthermore, cannabinoid hemp extracts were removed from the definition of marijuana as well.

In other words, the 2018 Farm Bill made cannabinoids like CBD permitted on a federal level. Nevertheless, the rules are enacted on a state-by-state basis. While most states embraced the burgeoning hemp industry, a few were less keen on the idea of the CBD market.


New York has formulated some of the strictest laws on CBD in the State. Governor Andrew Cuomo created a Cannabinoid Hemp Program in an attempt to “protect both consumers and farmers.”

At the same time, New York has legalized possession of small amounts of marijuana, which makes the decision on cannabinoids questionable.

Given that, unlike CBD, delta-8 is a psychoactive cannabinoid, the rules are a little more understandable. It appears that the new regulations banning delta-8 are in place to enforce more regulations in the industry. As such, New York’s regulations are not a blanket ban on D8, but a ban on creating delta-8 through synthetic means. People can’t make delta-8 products in New York, but the stance on possession is unclear.

Even federal law is murky on the subject of delta 8. For example, the definitions in the Farm Bill don’t necessarily apply to psychoactive compounds; on the other hand, the banned substance of THC may or may not apply to delta-8 as well as delta-9.

It’s clear that things are complicated. For now, it seems that New York has diverted away from federal law slightly to place a total ban on delta 8. While the federal government has not yet taken a stance on it, many brands are seeing this as a loophole that permits the THC analog on a national level.

Notably, several other states have banned delta-8, including:

  1. Alaska
  2. Arizona
  3. Arkansas
  4. Colorado
  5. Delaware
  6. Idaho
  7. Iowa
  8. Mississippi
  9. Montana
  10. Rhode Island
  11. Utah

DEA Rules About Delta-8 in NY

According to the federal Drug Enforcement Administration, delta-8-THC remains a controlled substance. The Administration’s ‘Orange Book’ lists delta-8 as “[another] name for tetrahydrocannabinols.”

In the DEA’s view, delta-8’s parent plant, Cannabis sativa, is a controlled substance. Technically, hemp is a form of the cannabis plant, but it contains much less delta-9-THC than its counterpart, marijuana.

The New York State Health Department also views the two plants as separate. The State allows hemp to be grown with a license issued by the Cannabinoid Hemp Program; conversely, while marijuana is not legal to cultivate for recreational purposes.

The status of delta-8 is thus more complicated. Here’s a quick breakdown:


Stance on Marijuana

Stance on Hemp

Stance on Delta-8

Federal Government


Legal, defined as Cannabis sativa with less than 0.3% (delta-9) THC

Unclear; no statement as of yet



Legal, defined as Cannabis sativa with less than 0.3% THC

The definition of hemp does not automatically exempt any derivative from the Controlled Substances Act. Delta-8 remains within the CSA.

New York

Legal to possess for medical purposes or for those over the age of 21

Legal to grow with permission from the relevant authorities. Many plants are used for production of CBD products. However, hemp-derived CBD cannot be inhaled or used in conjunction with tobacco or alcohol. Skin patches are also banned.

Synthetically-made delta-8 is illegal

As it stands, there is a lot of disconnect between all the relevant authorities. It makes things confusing for the consumer, but so far, it appears that they are not the target of these laws.

Keep reading to learn if there is a way to use D8 products legally.

How to Use Delta 8 Legally in New York

There are lots of delta-8 products currently available on the market. The list includes:

  • Tinctures
  • Edibles
  • Vapes
  • Isolates
  • Topicals

Many of the items found on the CBD market also come in a delta-8 variant. Based on New York’s CBD guidelines, it’s safe to assume that tinctures, edibles, and most topicals are okay. However, New York bans the use of CBD in cocktails or in conjunction with alcohol, as well as prohibiting CBD joints and topical patches.


If this is the case for a non-psychoactive cannabinoid, it’s likely that these products would not be accepted if they contain delta-8-THC.

Of course, the first hurdle is whether delta-8 is allowed in the first place. It appears that the crackdown is more on sellers and importers of synthetic D8. Some New York retailers have closed down operations as a result, making it difficult to access D8 products in New York to begin with.

For consumers, the rules are less than clear.

Is Delta-8 Legal in New York (Final Thoughts)

Like many things to do with cannabis, the guidelines on delta-8 in New York are very hazy. The rules appear to be different depending on where you look, so there is no clear answer to the question ‘is delta-8-THC legal in NY?’

For now, it’s safest to assume that all synthetic delta-8 THC products are prohibited in the State of New York.

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