DEA Rules Delta-8 And Delta-9 THCO Are Controlled Substances

The Drug Enforcement Administration (DEA) ruled earlier this week that the cannabinoids delta-8 THCO and delta-9 THCO are controlled substances that are illegal under federal law, even if they’re synthesized from legal hemp. The two cannabinoids, which don’t occur naturally but can be synthesized from hemp, have become popular in some markets across the country, particularly in states that haven’t yet legalized adult-use cannabis. 

The 2018 Farm Bill legalized hemp and products derived from it, leading to a significant increase in the cultivation of the crop as farmers and processors sought to take advantage of consumer interest in CBD. Since then, products made with the novel cannabinoid delta-8 THC, which naturally occurs in cannabis in trace amounts and can be synthesized in large quantities from CBD, have also become popular. Last year a federal court ruled that delta-8 THC is legal when derived from hemp. Products containing the intoxicating cannabinoid have become popular from coast to coast, with availability in specialty shops, convenience stores and gas stations, among other retailers.

In 2022, attorney Rod Kight sent a letter to the DEA inquiring about the legal status of delta-8 THCO and delta-9 THCO, according to a report from Marijuana Moment. After he repeated the request earlier this month, the DEA sent a response letter to Kight on February 13, saying that the two cannabinoids “do not occur naturally in the cannabis plant and can only be obtained synthetically, and therefore do not fall under the definition of hemp.”

In the letter, Terrence L. Boos, the chief of the DEA’s Drug & Chemical Evaluation Section of the Diversion Control Division, wrote that “delta-9-THCO and delta-8-THCO are tetrahydrocannabinols having similar chemical structures and pharmacological activities to those contained in the cannabis plant. Thus, delta-9-THCO and delta-8-THCO meet the definition of “tetrahydrocannabinols,” and they (and products containing delta-9-THCO and delta-8- THCO) are controlled in schedule I” of the federal Controlled Substances Act.

In a blog post about the letter from the DEA, Kight wrote “although I don’t always agree with the DEA’s view on cannabis matters, I agree with this opinion and, frankly, am not surprised. This is what I’ve been saying for a while. I’ve 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 isn’t naturally expressed by the hemp plant. It’s a laboratory creation that doesn’t occur in nature, at least not from the hemp plant.”

Shawn Hauser, a partner at the cannabis and psychedelics law firm Vicente Sederberg LLP, says that the DEA’s ruling doesn’t impact the regulated cannabis industry because of the plant’s continued illegality under federal law. The determination could, however, lead states to only allow synthetic cannabinoids under cannabis regulatory regimes rather than permitting them under hemp regulations. 

Definition Required Around Term “Synthetic” Cannabinoid

The determination is also significant because while the DEA has been clear in its Interim Final Rule implementing the 2018 Farm Bill that the agency doesn’t consider “synthetic” hemp products to be legal hemp and were therefore federally illegal controlled substances, it didn’t define the term “synthetic” as the term is applied to cannabinoids. Hauser notes that without further clarification or enforcement action, the Interim Final Rule led to confusion among the industry and consumers about the legality of novel cannabinoids that don’t occur naturally in the hemp plant.

“This federal ambiguity and a growing and innovating hemp market resulted in states taking varying approaches as to how they define and regulate ‘synthetic’ cannabinoids, and substantial confusion for industry, consumers and regulators as to the legality and safety of certain products,” Hauser says. “While this provides some long-overdue clarity as to the illegality of certain cannabinoids not naturally occurring in the plant under the Controlled Substances Act, this determination underscores the mess the DEA and FDA have created in failing to appropriately regulate both synthetic and natural cannabinoids to ensure consumer safety.”

Advocates contend that consumer and producer confusion about the legality of novel cannabinoids could be eliminated with the federal legalization of marijuana. Once prohibition is lifted and natural cannabinoids are available to the public, demand for intoxicating novel cannabinoids would likely dry up.

“Whether they’re synthetic or naturally occurring, psychoactive cannabinoids need to be regulated responsibly to protect public health and safety,” Aaron Smith, CEO of the National Cannabis Industry Association (NCIA), said in a statement. “The only way to successfully achieve that end is to finally end national prohibition, enact sensible regulations at the federal level and allow state cannabis laws continue to work across the country.”