Ever since its federal legalization in 2018, delta 8 has soared in popularity all around the country—and all around the world. Despite its federal legality, some states have taken the steps to restrict and even flat-out ban the compound. But is the Empire State one of these aggressors, or is delta 8 legal in New York?
Is Delta 8 Legal In New York?
Before diving into New York’s own delta 8 laws, let’s take a step back and deepen our understanding of the Farm Bill, the piece of legislation that made hemp and hemp-derived products legal at a federal level. Also known as the Agriculture Improvement Act, the Farm Bill passed in 2018 and effectively legalized hemp and all of its derivates, rendering hemp-derived cannabinoids like delta 8 legal from sea to shining sea.
An important distinction created by the Farm Bill was that between hemp and marijuana. Despite their many scientific similarities, the piece of legislation created a legal distinction between the two. Under federal law, hemp refers to cannabis plants containing 0.3% THC or less on a dry weight basis, while marijuana refers to cannabis plants with THC contents over 0.3%.
While the Farm Bill fully legalized hemp and hemp products, it did not legalize marijuana, meaning that marijuana remains effectively illegal and is considered a schedule I substance. That said, the Biden administration put out a statement earlier this year express its plan to revisit the federal government’s stance on the type of cannabis. In the statement, the administration mentioned pardoning all federal offenses for simple marijuana possession, urging states to do the same, and initiating the process to remove marijuana’s classification in the Controlled Substances Act.
Here's to hoping for a future with better and more compassionate marijuana laws, but for now, hemp-derived cannabinoids remain the only federally legal way for United States citizens to use cannabis recreationally.
With a deeper understanding of the federal government’s stance on both hemp and marijuana, let’s go back to the Big Apple. Is delta 8 legal in New York?
Delta 8 in New York
Unfortunately, New York does not agree with the federal consensus regarding hemp law. Delta 8 products are restricted in New York, as per an announcement from the New York Cannabis Control Board (CCB) that states that delta 8 products cannot be legally sold, produced, or manufactured within the state. The law surrounding possession of delta 8, however, remains unclear.
“Delta-8 THC products are not permitted in the New York State Cannabinoid Hemp Program. Retailers are not permitted to sell Delta-8 THC products and processors are not permitted to manufacture them,” says the New York Department of Health, “The Department has issued proposed regulations clarifying this prohibition which can be viewed here: Proposed Regulations.” With statements from both, the CCB and the NYDOH, it is clearer now than ever that the state takes a hostile stance against the distribution of delta 8 among its residents. But this wasn’t always the case.
The state originally legalized hemp and hemp-derived compounds following the enactment of the federal Farm Bill in 2018, effectively removing them from its list of controlled substances. On November 3, 2021, however, the New York Cannabis Control Board announced that hemp-derived delta 8 products are actually not allowed to be sold within the state, causing rightful uproar among delta 8 vendors, consumers, and producers. According to some reports, safety and mislabeling were the two main concerns held by New York lawmakers when they outlawed the compound. A CCB spokesperson gave users hope, however, when they stated that delta 8 products require regulation through a future adult-use program.
So, while delta 8 isn’t legal in New York anymore, it may come back sometime in the future with better regulatory standards, which is ultimately a good thing for consumers. The sad reality is that many retailers and manufactures often employ unsafe production tactics when making delta 8. So, while the state was right to worry about regulatory framework, they could’ve started by setting safety and purity standards for the hemp-derived products sold in the state, rather than banning them altogether.
Shipping Delta 8 Products to & from New York
Because of delta 8’s legal—or better said, illegal—status in the state of New York, it is unlawful for retailers to ship delta 8 to the Empire State. This means that no reputable manufacturer will ship delta 8 products to New York.
In states where delta 8 is legal, however, many consumers opt for online retailers instead of local smoke shops or corner stores. Needless to say, you should never buy your cannabinoid products from a gas station! Online stores offer much more variety, security, and quality than physical stores for many reasons. Shopping for delta 8 online is a much more transparent transaction: reputable sources provide third-party lab testing and full ingredient lists, meaning you get to be completely aware of what exactly is going in your body.
Online stores also have reliable reputations. You can do some research online and find customer reviews, testimonies, and ratings. And it isn’t just the people in your borough rating these stores either—online cannabinoid retailers serve people all around the country, so you get truthful and legitimate reviews from thousands of people from Florida to Wisconsin. Additionally, many stores will have information posted to their sites regarding the production process for their products, the type of hemp they use and where it’s grown, and much more. Online, you can find all sorts of information to help you make an informed decision on where to buy the safest and highest quality product.
Finally, online retailers are able to offer much more variety in the products that they sell. In a smoke shop, you’re restricted by the store’s physical stocks, meaning you get what you see, or you go home empty handed. Online, you can browse through thousands of products from the comfort of your own home until you find something that fits your needs to a T.
Finding Delta 8 is Difficult Due to Heavy Regulation
While it is possible to find some sketchy smoke shops that continue to sell delta 8 in the Empire State, you should not purchase the compound from these sources. These kinds of sellers are exactly what the state was trying to prevent in their delta 8 ban: unsafe, unregulated products running rampant through the Concrete Jungle. If these sellers ignore state law, what makes you think they’re not ignoring the property safety and purity standards adhered to making these products?
Delta 8 is Illegal in New York, But Are Other Forms of Cannabis?
While delta 8 is not legal to sell, produce, or manufacture in the Empire State, recreational marijuana is fully legal in New York. This means that delta 8 users can find solace in delta 9, a similar but stronger cannabis compound.
The legalization of recreational marijuana came recently in late 2021 after years of failed attempts and stalled efforts. Senate Bill S854A, known as the New York Marijuana Taxation and Regulation Act, signed into law by Governor Andrew Cuomo in September of 2021, legalized the drug for the recreational use of adults 21 and older, successfully moving toward the creation of a potential $4.2 billion dollar industry with the potential to become one of the nation’s largest. The law allows New Yorkers to use and possess up to 3 ounces—or 85 grams—of cannabis without requiring a medical marijuana card or prescription. Before this, recreational cannabis possession in small quantities was decriminalized.
Under this new law, New Yorkers 21 and up are allowed to use, smoke, ingest, or consume cannabis products, and they can also share their goods with anyone else who meets the same age requirements. At home, people will be permitted to store up to five pounds of cannabis, but they will need to take “reasonable steps” to make sure their stash is stored securely. There are also penalties, ranging from simple violation to a felony charge, for possessing more than the permitted amount or selling it without a license.
Regarding where marijuana is allowed, Liz Krueger, the bill’s sponsor in the Senate, said people are allowed to smoke in public wherever smoking tobacco is legal. “As far as right now, the law passing today, if you can smoke tobacco there, you could smoke marijuana there.” Smoking cannabis is not permitted in schools, workplaces, or inside a vehicle. Krueger also said localities and new state cannabis agencies could potentially create rules to more strictly regulate cannabis in public; smoking publicly where not permitted could subject people to a $25 civil penalty or up to 20 hours of community service. Officers can no longer use the smell of cannabis as a justification to stop and search a pedestrian.
The new law also allows users to cultivate up to six plants at home, indoors or outdoors, with a maximum of twelve plants total per household. This will not go into effect, however, until 18 months after the first adult-use dispensary opens. The same applies for medical marijuana patients.
Additionally, people with certain marijuana-related convictions for activities that are no longer criminalized will have their records automatically expunged.
Delta 8 vs. Delta 9 in New York
While delta 8 is illegal in the Empire State, delta 9 remains lawful and available for those over the age of 21 who want to use the compound recreationally. Recently, the state granted its first 36 retail licenses to dispensaries throughout the state of New York, with eight non-profit groups among the receivers. Almost exactly a year after the legislation first passed, easy access to recreational cannabis is now becoming a reality for New Yorkers.
New York Cannabis Market Grows with Medical Marijuana (But Without Delta 8)
With a newfound—and in demand—recreational cannabis market, New York is set to see a boom in its economy, and it’s all thanks to a little weed. Although recreational marijuana is still a new reality in the state of New York, medical cannabis has been available for the state’s residents since 2014. That said, New York law remains hostile against delta 8, meaning losses for previous delta 8 sellers and a lack of access for delta 8 consumers who are not comfortable with delta 9.
New York Medical Cannabis Laws
As we mentioned before, medical cannabis has been accessible to New Yorkers since 2014 through the state’s Medical Cannabis Program. Originally, the law permitted qualified patients to possess a 30-day supply of cannabis-infused, non-smokable products. In 2017, however, the Department of Health announced that “registered organizations will be allowed to manufacture and distribute additional products including topicals such as lotions, ointments and patches, as well as solid and semi-solid products including chewable and effervescent tablets and lozenges. Certain non-smokable forms of ground plant material will also be permissible for manufacture and distribution.” Further legislation signed into law in 2021 amended these rules to permit qualified patients to possess a 60-day supply of cannabis and removed its prior prohibitions on smoking.
Qualifying conditions to obtain a medical cannabis card in New York are:
- Acute pain management
- Amyotrophic Lateral Sclerosis (ALS)
- Chronic pain
- Huntington’s Disease
- Inflammatory bowel disease
- Parkinson’s Disease
- Post-Traumatic Stress Disorder
- Multiple Sclerosis
- Opioid substitution
- Spinal cord damage
Additionally, as of January 2022, any other condition that a practitioner believes can be treated with medical cannabis can qualify patients for a prescription. More recently, qualified patients have also been allowed to home-cultivate up to six plants per private residence.
So, how exactly can New Yorkers get a medical cannabis card? According to New York’s Office of Cannabis Management (OCM), the first step is speaking with your practitioner about whether medical cannabis is appropriate for your condition. Once you possess a certification from your practitioner, you must register with the Medical Cannabis program through the OCM’s online Patient Registration System. Upon approval, you will be issued a Temporary Registry Identification Card, which can be used, along with a government-issued photo ID, until you receive your registry identification card in the mail.
Patients under the age of 18 or any other person who is otherwise incapable of consenting to medical treatment can also apply, but the application needs to be submitted by an “appropriate person” over the age of 21. Caregivers must be among the following:
- A parent or legal guardian of the certified parent
- A person designated by a parent or legal guardian
- An appropriate person approved by the OCM upon a sufficient showing that no parent or legal guardian is available or appropriate
- An employee of a designated caregiver facility, including a cannabis research license holder
From there, it’s just a matter of finding a dispensary near you. The state has approved and licensed several dispensing facilities throughout the state of New York, all of which can be found here.
New York Medical Cannabis vs. Delta 8
Despite New York’s comprehensive recreational and medical cannabis laws, the state remains aggressive towards delta 8’s legality. Although it is legal for people over 21 to use marijuana recreationally and lawful for patients with adequate prescriptions to use medicinal cannabis, the sale and distribution of delta 8 remain illegal.
In states where medical cannabis is legal but recreational cannabis is not, delta 8 serves as an alternative for people who do not qualify for medical marijuana. Because delta 8 is just a milder analog of delta 9—or the main psychoactive compound in cannabis—it shares many of the same benefits and properties with the compound, albeit to a lesser extent. This makes delta 8 the safe and legal alternative when medical cannabis is out of reach. With recreational cannabis fresh in its legality, however, adult New Yorkers can now look to their state’s own dispensaries for some alternative relief, even when they don’t qualify for a medical card.
Are Other Hemp-Derived Cannabinoids Legal in New York?
Delta 8 and delta 9 may be some of cannabis’s most famous compounds, but they’re not all the miraculous plant has to offer. Many other cannabinoids offer a range of properties and benefits that can be helpful—and fun—in many situations.
You already know of delta 8, but delta 10 is another popular compound known for its energizing and focusing properties. Its mild and mellow high makes it perfect for concentration and creativity, allowing users to create artistically and tackle work-related tasks. Another cannabinoid, called HHC, is more potent than delta 8 but less potent than delta 9. It is popular for its euphoric and elevating effects, as well as its potency level. Finally, THCO is much stronger than delta 9, and it has even been known to cause psychedelic effects—including audiovisual hallucinations—when consumed in large enough amounts.
Unfortunately, just like delta 8, none of these compounds are legal in the state of New York. So, for now, New Yorkers can only enjoy the benefits of delta 9, but it does not extend the same courtesies to any of its siblings.
Is Delta 8 Legal in New York: Final Thoughts
So, is delta 8 legal in New York? Unfortunately, it is not. Due to safety and purity concerns, lawmakers decided to outlaw the compound in late 2021. That said, the Empire State does count on both, legal and recreational marijuana policy that seems compassionate and unrestrictive, so delta 8 users over 21 years old can still find similar alternatives in dispensaries throughout the state.