Is Delta 8 THC Legal in Kentucky?

Legality of buying Delta 8 THC in Kentucky

View all Delta 8 THC Legal States Information

The State of Kentucky has been making headlines lately. With the legalization of medical marijuana, many people are asking if Delta 8 THC is legal in Kentucky? The answer to that question is yes! It may come as a surprise, but Delta 8 THC is not only legal in Kentucky, but also federally. As long as it contains less than a .3% delta-9 tetrahydrocannabinol concentration (Delta 9-THC), it can be purchased without worries.

 

Yes, Delta 8 THC is legal in the State of Kentucky.

Delta 8 legal concerns have been coming up recently due to the newly-popularized cannabinoid becoming the talk of towns across the state. Known as a mildly-psychoactive cannabinoid that will give users a "high", hemp-derived cannabinoids have been legal in Kentucky since the passing of the Farm Bill in 2018. As long the Delta-9 content remains at or under the .3%, all industrial hemp derivatives including one of the isomers of hemp, Delta-8 THC, is legal under both state and federal laws. State regulators have remarked on limiting the Delta-8 content, but it's lawmakers' role to define the state's stance on tetrahydrocannabinols.
 
Currently in Kentucky, Delta 8 is allowed but that could be changing soon. With the amended KRS 260.850 Act that went into effect February 2020, state lawmakers explicitly limit the level of Delta-9 THC to be in compliance with the 2018 Farm Bill, which requires products not to exceed .3% Delta-9 THC. In a related but separate Act 218A.010, lawmakers stated in the Act, "'Industrial hemp products' has the same meaning as in KRS 260.850." With that printed in black-and-white, why would there be such controversy related to the hemp-derived Delta-8 THC being prohibited in the State of Kentucky?
 
The controversy began with a Powerpoint Presentation released by the Kentucky Department of Agriculture (KDA) in which they titled slide 67, "Delta-8 THC is Controlled Substance." On the slide, they suggest:
According to the DEA Controlled Substance list, Delta-8 THC and all other “Tetrahydrocannabinols” are a Schedule I drug under DEA Number 7370. You can find the DEA controlled substance list on this website...
 
And to KDA's credit, they do have a point as the DEA does specifically list Delta-8 THC by name, but the DEA serves to enforce laws-- not make new laws to be enforced. Instead, it's the USDA that has been given the authority to make such rules, according to the 2018 Farm Bill signed into law by the president. KDA isn't here to interpret the laws, either.
 
According to the USDA's final rule that was published 1/19/2021, the official source, they said the following about Delta-8.
“Delta-8 THC is unrelated to the 0.3 percent delta-9 THC limit…”
 
Of course, this determination above happened after the DEA published their Interim final rule with request for comments, published 8/21/2020 and did you read the fine print?
This interim final rule merely conforms DEA’s regulations to the statutory amendments to the CSA that have already taken effect, and it does not add additional requirements to the regulations.
 
Honest mistake by the KDA to reference the DEA when they explicitly say their interim final rule (in request of comments) is not meant to add additional regulations? Or does it foreshadow the future banning of Delta-8 THC in the future? Let's learn why, despite official sources communicating misleading information, Delta-8 THC is currently legal in the State of Kentucky.

 

Current Kentucky Delta-8 Legislation

The state legalized industrial hemp which can be found in the 218A.010 Statute and the revised KRS 260.850 to 260.869 Industrial Hemp statutes. The State of Kentucky had followed the guidance of .3% Delta-9 THC, defined by the federal government. Hemp products and derivatives are permitted.
In Ky. Rev. Stat. § 260.850, they provide the following definitions:
"Hemp" or "industrial hemp" means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than three-tenths of one percent (0.3%) on a dry weight basis
"Hemp products" or "industrial hemp products" means products derived from, or made by, processing hemp plants or plant parts
 
Many of the related statutes refer to the state's industrial hemp program, however, within the 218A.010 Statute we see how lawmakers made exceptions within the state's controlled substances list to exclude industrial hemp from being classified as marijuana. In this statute, they state the following:
"Marijuana" means all parts of the plant Cannabis sp., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin or any compound, mixture, or preparation which contains any quantity of these substances. The term "marijuana" does not include:
Industrial hemp products that do not include any living plants, viable seeds, leaf materials, or floral materials
 
With industrial hemp-derived Delta-8 THC, this type of product is decompartmentalized from marijuana so as long as the Delta-9 THC contents of the Delta-8 Product does not exceed the .3% Delta-9 THC, resulting in qualifying Delta-8 THC Products being legal in the state.
Before the Acts above, Senator Rand Paul was the first to introduce the issue to Senator Mitch McConnell in 2011. By 2013, KY HOUSE BILL 236 was the first of its kind to introduce this type of legislation on the state-level. Subsequent bills such as KY HOUSE BILL 333, KY SENATE BILL 218, and KY HOUSE BILL 333 have all been since passed and signed into law by the Governor.
 
The state has legalized hemp by defining it according to the federal definition. It also legalized all hemp products, including those made from (or processed using) industrial hemp as well as CBD and other derivatives bearing no living plant material, viable seeds or flower.

 

Kentucky Industrial Hemp Act

The 2014 Farm Act created new federal legislation for the return of hemp production. Later, this led to the passing of the 2018 Farm Bill. The Farm Bill, secured by Senator Mitch McConnell, removed industrial hemp from the list of controlled substances distinct from marijuana if it is grown and manufactured in accordance with state and federal regulations.
 
Now, as one of the largest hemp producers in the country, the Kentucky Department of Agriculture monitors the Kentucky Hemp Licensing Program which provides licenses and oversees regulations for hemp growers in the state. According to the hemp restrictions posted, hemp materials have restrictions, including:
At this time, state law is very clear that it is unlawful to sell viable seeds, leaf materials, or floral materials to the general public.
 
However, as also stated on the same page, Delta-9 THC is the only type of tetrahydrocannabinol restricted:
Any hemp product with a delta-9-THC concentration in excess of zero and three-tenths (0.3) percent.
 
According to both the state law and federal, industrial hemp derivatives are considered legal hemp material so long as they meet the limitations on hemp which is:
1) Product doesn't contain leaf materials -- note to Kentuckians: stay away from Delta 8 flower.
2) The product does not exceed .3% Delta-9 THC levels as measured on a dry weight basis.
The growth of industrial hemp plants requires a license from the state. The purchase of hemp remains legal in Kentucky.
 

 

List of controlled substances

Of course various prescription medications and other drugs are listed on the state's list of controlled substances, but what does it say about Delta-8 THC?
Luckily for Delta-8 THC users, KRS 218A.010(27)(a) - (f) (described in an earlier section) helped to remove tetrahydrocannabinols from the Schedule I Controlled Substances List where it states:
The following shall be exempt from control as a Schedule I substance:
(a) Cannabis plant material, and products made therefrom, that contain tetrahydrocannabinols pursuant to the exemption established in 21 C.F.R. 1308.35; and
(b) Any substance or product exempt from the definition of marijuana pursuant to KRS 218A.010(27)(a) - (f).
 
The state of Kentucky has made exceptions for hemp products provided they don't contain the actual hemp flower. Delta-8-THC is legal and accessible as long as it was derived from legally produced industrial hemp plants. Reading the list of controlled substances, lawmakers clearly state the difference between hemp and marijuana. Further, there aren't Delta 8 THC Possession Limits other than ensuring the product in possession doesn't exceed the .3% Delta-9 THC threshold.

 

Buying and Shipping Delta 8 in Kentucky

Since Delta 8 is legal in the State of Kentucky, industrial hemp products are considered legal hemp products for residents which can be purchased online or in-store. Delta-8 sales, excluding hemp flower, can be delivered with a shipping address located in the state.
This is good news for Delta-8 THC users as Delta 8 THC Oil, caramels, crispy treats and other edibles are allowed as hemp-derived Delta-8 is legal in the State.

 

Advocacy Groups in Kentucky Supporting Delta 8 and Hemp Laws

Kentuckians are continuously supportive of Delta 8 and pushing progress towards better Hemp Laws. Check out some of the standout organizations in the State:

 

Kentuckians for Medicinal Marijuana

Kentucky NORML

Legalize Kentucky Now

 

News stories covering raids or busts on Delta 8 Products and stores in Kentucky

3/4/2021
2/25/2021