A cannabis compound called delta-8 is currently legal in Indiana. Both medical and recreational cannabis are prohibited, but hemp, cannabis with a delta-9 THC content of 0.3% or less on a dry weight basis, is fully legal. The phrasing “dry weight basis” is used as a loophole, as sellers can still include high amounts of delta-9 in their products.
Indiana Attorney General Todd Rokita and some state prosecutors have spoken up against the legality of delta-8, sparking a debate but a lack of recent action in the state.
Delta-8 is similar to but less potent than the predominant chemical in cannabis called delta-9, which is the most abundant form of THC. The compounds are nearly identical on a molecular level, but delta-8 is less psychoactive.
Jody Madeira, IU law professor, said delta-9 strongly latches on to cannabinoid receptors in the brain, while delta-8 binds onto them less firmly.
“It’s like super glue versus Elmer’s glue,” she said.
This is why delta-9 gives more of the effect of a high while delta-8 does not.
Bailey Jackson, a 30-year-old employee of local smoke shop 420 Bloomington, estimated that 10-15% of their products contain delta-8. The shop also sells tobacco and other nicotine products, as well as devices used to smoke weed.
However, she estimated, closer to 45% of their total sales revolve around delta-8 products including edibles, vapes, tinctures and “flower.”
“It’s become such a huge part of our business and if it went away, I think we would still get business and I think we would still be okay, but it would be a big hit,” Jackson said.
Under federal law, cannabis is considered a Schedule I controlled substance and is illegal, but this does not include hemp. Cannabis is state regulated despite its illegal status federally. The federal Farm Bill of 2018 expanded U.S. hemp legality further. This means Indiana’s current cannabis laws are congruent with federal law.
Jennifer Oliva, a law professor at IU with a focus on health law and policy, said there is an abundance of delta-9 within the cannabis plant, but there is only trace amounts delta-8.
Why is there no federal or local limit on delta-8 specifically? Oliva said it is extremely hard to obtain large amounts of delta-8 from cannabis and hemp plants, so much so that it would take growing many more plants to generate the same levels of delta-8 as delta-9.
Rokita issued an opinion against delta-8 in January 2023, claiming the compound is an illegal Schedule I controlled substance because it is derived from the cannabis plant. Following the complaint, law enforcement in certain areas began to take action, threatening to charge Hoosiers who continued to sell delta-8 products with dealing a controlled substance. Some businesses were even raided and products were confiscated.
Oliva said this move likely harmed the economy and sellers.
“You’ve bought these storefronts, you’re paying for this process to be done that isn’t easy and is time consuming, it takes a lot of cannabis plants and you’re getting booted out of business all of a sudden,” Oliva said. “That’s a really tough position to be in.”
Some delta-8 sellers came together to file a lawsuit against Rokita’s opinion and law enforcement’s response. The lawsuit said Rokita’s opinion is in violation with the Farm Bill of 2018 and Indiana Senate Enrolled Act 52, as states cannot modify the federal definition of hemp.
In 2024, Indiana State Police executed an investigation that revealed many delta-8 products sold across Indiana contained levels of delta-9 THC that exceeds Indiana’s legal limit. This triggered another round of orders from many law enforcement agencies for retailers to remove all delta-8, 9 and 10 products from their sale selection.
Monroe County has not yet been affected by Rokita’s opinion and local businesses have not been forced to close or stop selling delta-8, 9 and 10 products.
The reason sellers in Indiana have gotten away with including illegal amounts of delta-9 in cannabis products, Oliva said, is there is very little regulation of these products. This lack of regulation has persisted, she said, because the Indiana government cannot come to an agreement between those who want to completely ban hemp and those who want to set legal regulations for the production of delta-8 products.
Cannabis legalization is becoming more and more of a trend around the U.S., but Oliva says Indiana is a straggler. Indiana is surrounded on three sides by states that have fully legalized cannabis.
“The attorney general is really way off the legal trends here, the policy trends here, the dependence across states and popularity numbers in the United States,” she said.
Banning delta-8 in Indiana, Oliva added, would be harmful to the economy because it has generated hundreds of millions in sales revenue. The industry has made an $1.78 billion impact on Indiana’s economy, as of October 2023.
The topic of delta-8 has remained a gray area in Indiana. Lawmakers see the issue unlikely to be heard in the House, according to the Indiana Capital Chronicle.
Madeira said it would likely be extremely difficult for Indiana to ban delta-8 because due to the farm bill, people have a solid argument for it.
“That (the farm bill) makes delta-8 THC totally legal because we could already cultivate hemp, so why can’t we derive this from a crop that we already legally grew?” she said.
Oliva added that the Indiana legislature’s previous attempts to regulate and make clarifications about delta-8 have not succeeded, referencing House Bill 1079 from 2024 and Senate Bill 209 from 2022. HB 1079 was referred to the State Senate in February 2024 but has been at a standstill since then and SB 209 was dissented from the chamber.
“We’ll see what they do, but the winds are sort of against them and they don’t seem to have any agreement that they’re going to do this,” Oliva said.
Offering an opinion differing from Rokita’s, Indiana Gov. Mike Braun entertained the idea of legalizing medical marijuana on the gubernatorial campaign trail in 2024.
If medical marijuana is legalized, Madeira said, delta-8 would become even more relevant because people prefer it for treating pain over the more high-inducing delta-9.
Oliva said there would be more pressure on the Indiana government to legalize medical marijuana by veterans and people with PTSD and anxiety if delta-8 was banned.
