Is Delta 8 THC Legal in Idaho?

In Idaho, the legal status of Delta 8 THC is explicitly defined by state law, which diverges from federal regulations in a significant manner. Unlike many states that have aligned their hemp and hemp-derived product regulations with the 2018 Farm Bill, Idaho maintains a stringent stance against all forms of THC, including Delta 8 THC.

The 2018 Farm Bill federally legalized hemp by removing it from the Controlled Substances Act, defining hemp as any part of the Cannabis sativa L. plant, including all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, with a delta-9 tetrahydrocannabinol (Delta 9 THC) concentration of not more than 0.3% on a dry weight basis. This legislation led to a surge in the popularity and market availability of hemp-derived products, including those containing Delta 8 THC, a cannabinoid known for producing milder psychoactive effects compared to Delta 9 THC.

However, Idaho's statutes have not been amended to align with the federal definition of legal hemp. Under Idaho Code § 37-2701(t), the state's definition of marijuana includes all parts of the cannabis plant, regardless of THC concentration, effectively making any THC-containing product illegal under state law. This includes Delta 8 THC, even if it is derived from federally legal hemp.

Additionally, Idaho Code § 37-2705 explicitly lists tetrahydrocannabinols and their optical isomers as controlled substances, without making a distinction between Delta 8 and Delta 9 THC or their source (hemp vs. marijuana). As a result, the possession, sale, or distribution of Delta 8 THC products is prohibited within the state.

This strict interpretation means that even though Delta 8 THC may be derived from hemp that is federally legal under the 2018 Farm Bill, its presence in any concentration in products makes those products illegal under Idaho law. This discrepancy highlights the complex legal landscape surrounding cannabis and its derivatives in the United States, where federal and state laws can significantly diverge, leading to confusion and legal challenges for consumers, businesses, and law enforcement.

AN ACT

RELATING TO HEMP; AMENDING TITLE 22, IDAHO CODE, BY THE ADDITION OF A NEW CHAPTER 17, TITLE 22, IDAHO CODE, TO PROVIDE A SHORT TITLE, TO PROVIDE LEGISLATIVE INTENT, TO DEFINE A TERM, TO PROVIDE FOR RESEARCH AND PRODUCTION OF HEMP, AND TO PROVIDE FOR THE REGULATION OF HEMP; AMENDING SECTION 37-2701, IDAHO CODE, TO REVISE A DEFINITION AND TO DEFINE A TERM; AMENDING SECTION 37-2705, IDAHO CODE, TO PROVIDE AN EXCEPTION FOR CERTAIN HEMP REGARDING TETRAHYDROCANNABINOLS; AND AMENDING SECTION 37-2732, IDAHO CODE, TO PROVIDE A CORRECT CODE REFERENCE.

22-1703. DEFINITION.

As used in this chapter, “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.

37-2701. DEFINITIONS.

(p) “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, the research an development of which, among other activities, are expressly authorized by chapter 17, title 22, Idaho Code.

(u) “Marijuana” means all parts of the plant of the genus Cannabis, regardless of species, and whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. It does not include hemp or the mature stalks of the plant unless the same are intermixed with prohibited parts thereof, fiber produced from the stalks, oil or cake made from the seeds or the achene of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted therefrom or where the same are intermixed with prohibited parts of such plant, fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination. Evidence that any plant material or the resin or any derivative thereof, regardless of form, contains more than three-tenths of one percent (0.3%) of any of the chemical substances classified as tetrahydrocannabinols shall create a presumption that such material is “marijuana” as defined and prohibited herein.

37-2705. SCHEDULE I.

(d) Hallucinogenic substances. (27) Tetrahydrocannabinols, except in hemp with no more than three-tenths of one percent (0.3%), or synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis, sp. and/or synthetic substances, derivatives, and their isomers with similar chemical structure such as the following:

i. Tetrahydrocannabinols:

a. ∆ 1 cis or trans tetrahydrocannabinol, and their optical isomers, excluding dronabinol in sesame oil and encapsulated in either a soft gelatin capsule or in an oral solution in a drug product approved by the U.S. Food and Drug Administration.

b. ∆ 6 cis or trans tetrahydrocannabinol, and their optical isomers.

c. ∆ 3,4 cis or trans tetrahydrocannabinol, and its optical isomers. (Since nomenclature of these substances is not internationally standardized, compounds of these structures, regardless of numerical designation of atomic positions are covered.)

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