Delta-8 And -9 THC-O Are Controlled Substances, DEA Says

The U.S. Drug Enforcement Administration says that both cannabinoids delta-8 and -9 THC-O, which have been growing in popularity in recent years, are to be considered illegal controlled substances.

DEA’s position on the legal status of delta-8 and -9 THC-O came following an inquiry by attorney Rod Kight.

DEA sent a response on February 13, highlighting that Delta-8 and -9 THCO do not occur naturally in the cannabis plant and can only be obtained synthetically. Therefore, do not fall under the definition of hemp.

Both synthetic cannabinoids are considered controlled substances in Schedule I of the Controlled Substance Act (CSA) due to their chemical structures and pharmacological activities, which are similar to delta-9 tetrahydrocannabinol (or delta-9 THC), the main psychoactive compound of marijuana that is found in the cannabis plant.

The DEA’s perspective on these synthetic cannabinoids focused on their chemical structures rather than the source of their extraction.

In response to the DEA’s statement, Kight said he was not surprised, as this had been his position for some time.

“I have been concerned about the proliferation of THC acetate ester (THCO) for a while. It has always been my view that THCO is a controlled substance under federal law. Although it can be made from cannabinoids from hemp, THCO is not naturally expressed by the hemp plant. It is a laboratory creation that does not occur in nature, at least not from the hemp plant,” he wrote.

The grey market of hemp-derived cannabinoids came to life following the 2018 Farm Bill, which federally legalized the cultivation of the hemp plant with a THC level below 0.3%.

The cultivation of hemp plants resulted in the extraction and production of non-intoxicating cannabinoids like CBD. However, it also indirectly enabled hemp businesses to extract and produce synthetic intoxicating cannabinoids from CBD. These new cannabinoids have a chemical structure and effects similar to delta-9 THC found in marijuana, which is responsible for psychoactive effects.

The popularity of delta-8 and-9 THC-O products has increased in the United States, with some states using them as a substitute for marijuana in the absence of recreational marijuana regulations.

Nonetheless, there is insufficient peer-reviewed scientific research on these products, and their psychoactive effects are only known through anecdotal consumer reports.

Shane Pennington, counsel at Vicente Sederberg LLP, who focuses his practice on federal appeals and regulatory issues related to cannabis and hemp, explained that the DEA’s letter represents an official determination of the control status of THC-O from the federal agency with delegated authority to implement the CSA. As such, it would be binding on the DEA in court.

Furthermore, Pennington highlighted that DEA’s letter applies not only to delta-8 and delta-9 THC-O products but also to other hemp-derived synthetic cannabinoids with intoxicating effects that have emerged in recent years, such as HHC.

It is worth noting that, unlike delta-8 and delta-9 THC-O products, DEA previously classified delta-8 THC products as not controlled substances as long as they’re extracted from the natural plant, not synthesized.

This is because delta-8 THC, as well as other hemp-derived cannabinoids like delta-10 THC, can naturally occur in hemp plants.

DEA’s stance on delta-8 aligns with the Ninth Circuit’s ruling last year, which stated that delta-8 is not a controlled substance because the CSA only pertains to natural delta-9 THC.

Therefore, Pennington explained that the DEA’s letter on delta-8 THC-O and delta-9 THC-O would be binding on the agency in federal court “unless and until the agency takes similarly formal action to announce a change in policy.”

Despite the absence of federal regulations for hemp-derived cannabinoids, some states have established their own regulatory frameworks.

Delta-8 THC products are subject to different regulations in various U.S. states. Meanwhile, the U.S. Food and Drug Administration (FDA) is requesting additional data to assess the safety of hemp-derived products.

Recently, the agency announced that it would not create rules allowing CBD to be marketed as food or dietary supplements. However, it did express its commitment to collaborating with Congress to find a legislative solution to this issue.

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