Is Delta-8 THC Legal in Florida?

The Agriculture Improvement Act of 2018 (often known as the “Farm Bill”) was passed by lawmakers without them realizing they were allowing delta-8 THC to flourish. Florida quickly authorized delta-8 THC once the definition of “hemp” was included into state statutes and promptly adopted without hesitation by the majority of states.

The state has a new law on delta-8 set to come into force on July 1st, but it will remain legal for adults aged 21 or over, at least in the short term.

However, there are still many important restrictions on delta-8 THC in Florida, including rules about driving under the influence and using it in public. Here’s what you should know. 

If Gov. DeSantis doesn’t veto SB 1676 before June 27, sales of delta-8 THC may be limited to adults 21 and older as of July 1, 2023, despite the fact that it is legal in Florida.

Following the 2019 approval of Senate Bill 1020, which outlined “hemp” in accordance with the 2018 federal Farm Bill, delta-8 THC was first made legal in Florida. It should be noted that a cannabis plant with less than 0.3% delta-9 THC by dry weight is considered a hemp plant, meaning that “all cannabinoids” from a hemp plant are legal in the state.

SB 1676, a measure that is currently on the Governor’s desk as of the time of writing (June 2023) will establish a 21+ age restriction on hemp products, along with specifications for

DeSantis has until June 27th to sign or veto the bill, but if he does nothing, it will still become law.

Delta-8 THC Legislation Timeline for Florida

The state of Florida legalized delta-8 THC in 2019 with the adoption of SB 1020, and upcoming legislation will add a few small limits to the cannabinoid.

Following the Farm Bill’s passing in 2018, other states started incorporating (often) the same language into their state statutes. This was done in Florida with SB 1020, which had the identical language as the federal legislation and so made delta-8 THC legal as long as it came from hemp.

Unfortunately, the law only instituted minimal rules and regulations on hemp-derived cannabinoids. For example, prior to SB 1676, Florida hemp law bans the sale of inhalable hemp products to anyone aged under 21 but does not limit non-inhalable products at all. This (and similar) issues have been rectified by SB 1676, which broadens the age restriction, explicitly prohibits child-friendly marketing and requires that any facilities making hemp extract meet food safety standards.  

Is Delta-8 Legal at the Federal Level?

It is commonly acknowledged that the 2018 Farm Bill authorized delta-8 at the federal level, even though this isn’t quite obvious and unequivocal.

Related: State-by-State Legality of Delta-8 THC

The 2018 Farm Bill allowed delta-8 THC since it naturally occurs in the hemp plant and is a derivative or extract of the hemp plant, according to the prevailing argument. However, the legal status of delta-8 THC generated from hemp has not yet been fully clarified. In fact, despite having a scant record, the 9th Circuit Court of Appeals determined its legal standing.

The 2018 Farm Bill explicitly protected the FDA’s right to regulate hemp in food items and dietary supplements under the Federal Food, Drug, and Cosmetic Act notwithstanding the general legalization of hemp. In accordance with that jurisdiction, the FDA has declared that delta-8 THC is an unlawful food addition and not a permitted food ingredient.

It’s important to note that hemp was defined by the Farm Bill as a cannabis plant with less than 0.3% delta-9 THC by dry weight, thus any delta-8 hemp products would have to adhere to that restriction.

Can Delta-8 THC Be Added to Food?

If the meal is intended for Florida, delta-8 THC may be put to it. Delta-8, however, is prohibited from being marketed in foods across state boundaries by federal law since it is categorized as an adulterant.

The federal Food, Drug, and Cosmetic Act (FD&C Act) places restrictions on the substances that food makers may use. According to the FDA’s interpretation of these regulations, because delta-8 THC is not Generally Recognized as Safe and is therefore an adulterant, it is not permitted in foods. The Florida hemp statute, however, clearly states that cannabinoids generated from hemp “are not controlled substances or adulterants.”

As a result, there is some inconsistency between state and federal law. However, in this instance, selling a delta-8 gummy to a person in California falls under the FD&C Act, whereas selling the same candy within the state of Florida is covered by local law. In other words, it is OK in Florida meals but not for sale to clients outside of Florida.

However, a Retail Food Establishment Permit is required if you offer prepackaged or fresh food to customers directly.

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