Delta-8 THC, legal status and risks in Indiana

Many gas stations, convenience stores, and other places have been selling Delta-8 THC products for some time now in Indiana, and almost everyone has the same question: is this legal? Unfortunately, our state’s laws do not provide a clear answer. Although possession of marijuana has been legalized (whether for medical or recreational use) in over 75% of U.S. states, it remains a Schedule 1 controlled substance at the federal level and in Indiana. However, Indiana’s definition of marijuana excludes a category of substances called “low THC hemp extract.” Low THC hemp extract is a substance or compound that comes from hemp (a low-THC version of the cannabis plant) and contains no more than 0.3% Delta-9 THC (or its precursors) by weight and no other controlled substances. Delta-9 THC is the main psychoactive chemical found in marijuana. While Delta-8 and Delta-9 THC are nearly identical compounds, a small chemical difference makes them legally distinct in Indiana.

Although Indiana law does not explicitly address Delta-8 THC, Indiana Attorney General Todd Rokita released an Official Opinion in 2023 stating that Delta-8 THC meets Indiana’s definition of a Schedule 1 controlled substance. In part, this reasoning relies on the fact that, unlike federal law, Indiana does not distinguish between THC (regardless of which “Delta” variant) derived from marijuana or from hemp. Accordingly, even if a Delta-8 product satisfies the limitation on the amount Delta-9 THC contained in it, the presence of Delta-8 THC places the product outside the definition of low THC hemp extract. While the Opinion is not an enforceable law or regulation itself, it is the guidance that the Attorney General gave to the Indiana State Police and the Indiana Prosecuting Attorneys Council.

Even if Delta-8 THC were clearly legal under Indiana law, purchasing Delta-8 products would still be risky. An investigation by the Indiana State Police found that numerous Delta-8 products sold across the state have more Delta-9 THC than is legally allowed in low THC hemp extracts, despite being sold in packaging that claims the products are within the legal limits.  This could cause legal liability for the stores selling these products and their customers, including criminal consequences for possession or distribution of a controlled substance. Additionally, many Indiana employers drug test for marijuana usage, both before hiring and during employment. Delta-8 THC shows up on most standard drug tests and can be a fireable offense depending on company guidelines. Finally, Delta-8 THC is intoxicating and you may be subject to criminal penalties if you are under its influence while operating a vehicle. Do not drive while intoxicated, regardless of the legality of the intoxicating substance.

If you have any questions about Delta-8 THC or have any legal issues regarding it, please contact McNeelyLaw LLP by calling (317)825-5110.

Disclaimer: This McNeelyLaw LLP publication should not be construed as legal advice or legal opinion of any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.