Did New York really ban delta-8 THC?

Published on June 7, 2021
image of delta 8 THC products
The New York State Department of Health has proposed a ban on the manufacture of delta-8 THC products within the state. It's unclear whether that extends to the possession and sale of out-of-state products. (Illustration by Joshua Titus / Leafly)

Just weeks after it legalized adult-use cannabis, New York has joined a growing number of states that are seeking limits or prohibitions on delta-8 THC, the intoxicating cannabinoid synthesized from hemp.

New York officials will prohibit the in-state production of delta-8 THC products derived from hemp. Beyond that, things get sketchy.

In late May, the New York State health department revised its regulations on the processing and retail sale of what it terms “cannabinoid hemp.” The proposed changes are still up for public comment, but they’re expected to take effect later this summer or fall.

That update prohibits New York-based hemp processors from using “synthetic cannabinoids, or Δ8-tetrahydrocannabinol or Δ10-tetrahydrocannabinol created through isomerization, in the extraction or manufacturing of any cannabinoid hemp products.” The revised regulations also prohibit “the use of Δ8-Tetrahydrocannabinol created through isomerization in the processing of cannabinoid hemp products.”

While the new regulations are apparently meant to clarify New York State’s stance on delta-8, many questions remain unanswered.

It’s unclear whether the proposed new regulations actually ban delta-8 products, as some media reports have indicated, or whether (as some attorneys argue) they simply stake out a new and still-murky legal space subject to further refinement by state officials.

What is delta-8?

New York strictly regulates hemp-derived products

New York has some of the strictest regulations of any state when it comes to hemp-derived cannabinoids, including cannabidiol (CBD).

Last October, Gov. Andrew Cuomo created a state Cannabinoid Hemp Program to regulate production and sale of hemp and hemp extract, and “help protect both consumers and farmers.”

The proposed new regulations on delta-8 are up for public comment through July 19. “After such time, the Department will assess all comments and if no further changes are necessary, adopt the regulations as written, at which time the prohibition on products manufactured with Delta 8 created through isomerization will be immediately effective,” Jill Montag, a New York State Health Department spokeswoman, said in a recent email to Syracuse.com.

How long will delta-8 remain legal?

Officials want a clear line

Some cannabis industry observers have questioned the timing of New York’s delta-8 regulations, especially considering that the state just legalized cannabis.

According to David  Feldman, a partner in the law firm of Hiller PC in New York, who is also CEO and co-founder of the cannabis consulting firm Skip Intro Advisors, the timing appears to be about regulatory control. 

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“Since D-8 is derived from hemp, defenders argue that its low THC level makes it ‘legal’ under the farm bill of 2018,” Feldman said in an email to Leafly. “But the state wants all cannabis products that are psychoactive to be regulated as such, whereas the regulation of hemp is focused on non-psychoactive capabilities. D-8 is psychoactive, though markedly less so than [the] typical delta-9 THC we normally see. And there are strong legal arguments that D-8 is indeed illegal under the Controlled Substances Act, even after the farm bill (though this is far from clear).”

But some aspects remain murky

Feldman added that while the current “legal murkiness” surrounding delta-8 makes an immediate law enforcement crackdown on manufacturers and retailers unlikely, there are some worrying signs for the delta-8 industry in New York. 

At least one of Feldman’s clients, he said, was “notified by the state to shut down while others are continuing to try to sell what they have until they receive notice from the state.”

Feldman said his firm has been advising its New York clients “that the state now views [delta-8] as illegal and they should stop selling it. The concern is that, in a very short time, CBD sellers have found a tremendous market in D-8 products, and as they cease these sales some have already seen the need to shut down operations entirely or consider moving to a ‘legal’ state.”

I tried delta-8 THC: Here’s what it feels like

Some old school NYC players avoiding delta-8

New York has long been an East Coast cannabis hub. A survey released several years ago by the German public relations and communications firm ABCD found that the Big Apple led the world’s major metropolitan areas in cannabis consumption.

“I never signed on to D-8. It was too new and the isolation of the plant like that is a little tricky.”

Vladimir Bautista, Happy Munkey co-founder

Vladimir Bautista, co-founder of Happy Munkey, a cannabis lifestyle and advocacy brand based in New York City, told Leafly that delta-8 has been on his radar for several years now.

“I’m not 100 percent knowledgeable about delta-8 but a lot of people have been pushing to sign on,” he told Leafly. “I never signed on: It was too new and the isolation of the plant like that is a little tricky. We really don’t know the long-term effects, and we don’t know long it will be legal.”

Bautista expects the state’s regulatory crackdown on delta-8, combined with the coming of legal adult-use sales, will prompt many New Yorkers to go back to traditional cannabis or CBD.  Those cannabis consumers, he added, are “trying to avoid as many headaches as possible with the legal market. People can [now] have three ounces on them, or five pounds in their homes and home grows, so people don’t need any more headaches.”

Confusing language in the new rule

For those directly involved in delta-8 production and sales in New York, the state’s updated regulations don’t come as a complete surprise.

“It’s nothing new; there’s always someone wanting to ban or legalize or change something,” said Kylie Halperin, CEO and co-founder of Pennsylvania-based DD8, a wellness company that works with hemp cultivators across the United States. DD8 sells delta-8 products all along the East Coast and elsewhere in the U.S.

“We saw it with CBD,” Halperin told Leafly, “It’s the same now with delta-8.”

‘Doesn’t prohibit delta-8,’ just its creation

Halperin also stressed her belief that what’s happening with delta-8 in New York is not a ban on possessing or selling delta-8 products. The language in the new regulations, she said, is terribly confusing “because it’s specifically related to the manufacturing/extraction process.”

Indeed, Mary Bielaska, an attorney and cannabis business consultant who works with Halperin, believes the New York regulations are open to interpretation.

“The way I read the legislation,” she told Leafly, “it doesn’t prohibit delta-8. It prohibits the conversion of delta-9 to delta-8. And it requires someone to be certain that the product that the manufacturing process starts with is a hemp product.”

Purposefully vague?

Bielaska said she believes New York regulators have paid close attention to the delta-8 controversy. “I think someone did their homework,” she noted. “Whoever drafted this legislation, I think they drafted it very purposefully. They are concerned about the safety of delta-8 products for various reasons.”

The major mission of the regulatory update, according to Bielaska, is that the state wants to make sure that any delta-8 extraction is done via a natural process, and without harmful contaminants.

“But there’s a bit of a gray area in this law, and I do think that is purposefully vague,” she said. “They reserved a chance to make further statements. They specifically stated that the department may include additional limits once they are more certain about this topic.”

Bielaska said the revisions to the delta-8 regulations clearly show that state officials are closely scrutinizing the local delta-8 industry.

“I don’t think that New York State’s health department will be tolerant of anyone that openly thwarts the new [adult-use cannabis] legislation,” she said, “and I do believe they’ll be completely intolerant of anyone who manufactures without looking into what their extractor is doing, and how they are producing the product, and what comes out in the end.”

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Bruce Kennedy
Bruce Kennedy
Bruce Kennedy is an award-winning reporter, editor, and producer based in Colorado. He has covered the legal cannabis industry since 2010.
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