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DEA Classifies Delta-8 and -9 THCO As Controlled Substances

The regulatory agency says the two cannabinoids do not meet the legal definition of hemp and are therefore considered illegal controlled substances.

In recent years, there has been a proliferation of hemp-derived cannabinoids flooding the low-THC market, specifically delta-8 THC. Unfortunately, there has been much confusion and misinformation about delta-8 since products containing the variant appeared on dispensary shelves and online sites.


Delta-8 is an isomer of the delta-9 THC cannabinoid found in hemp. With the passage of the Farm Bill in 2018, hemp and hemp-derived products became legal to cultivate again. According to the bill, hemp is any part of the cannabis sativa plant containing less than 0.3% delta-9 THC. Any parts containing more than that amount are deemed to be marijuana and are still illegal according to the Controlled Substances Act.


Delta-8 occurs naturally in the hemp plant but at minuscule levels. Therefore, scientists use a process known as isomerization to convert CBD or Delta-9 THC into delta-8 artificially to produce more significant amounts. It has similar psychoactive effects to delta-9 THC but is not as potent. Delta-8 THC is currently being studied for its potential role in treating pain, anxiety, and cancer cell proliferation. It has also been shown to have certain anti-inflammatory properties.


However, delta-8 has come under intense scrutiny in recent years by both health professionals and politicians. Because it falls under the protective umbrella of the Farm Bill, products containing delta-8, have been left largely unregulated by state and federal authorities. This lack of oversight and regulation has led to some devastating consequences. In one case in Virginia, delta-8 THC was blamed for the death of a toddler.


As a result, several states have enacted specific measures making delta-8 THC illegal. Additionally, this week the Connecticut Attorney General filed a lawsuit against five store operators for violating the Connecticut Unfair Trade Practices Act. According to the suit, the companies sold products containing delta-8 THC in packaging designed to appeal to children.


Attorney General William Tong, in a statement, said, “The five retailers we are suing today offered some of the most egregious look-alike edibles posing the worst risks for accidental youth poisoning. None of these edibles are tested or approved for sale in Connecticut, and packaging statements regarding THC content and safe serving sizes are not to be trusted.”


"The five retailers we are suing today offered some of the most egregious look-alike edibles posing the worst risks for accidental youth poisoning. None of these edibles are tested or approved for sale in Connecticut, and packaging statements regarding THC content and safe serving sizes are not to be trusted.”

- CT Attorney General William Tong


Adding more potential confusion to the growing concern over the out-of-control proliferation of potentially dangerous and unregulated cannabinoids is the issue of THC-O’s. THC-O acetate, or ATHC, is a purely synthetic compound derived from hemp. It does not occur naturally in the plant and can only be produced through a chemical process.


Likewise, much like delta-8 THC, THC-O acetate has strong psychoactive properties. As a result, many consumers have reported that ATHC is a rather potent cannabinoid. This potency is mainly responsible for the growth in THC-O’s popularity, particularly among those living in states where recreational marijuana is still illegal. However, certain scientific studies have raised questions about its safety, and advocacy groups like NORML have cautioned against its use.


One of the individuals asking those questions is attorney Rod Kight. As first reported by Marijuana Moment, Kight sent an inquiry to the Drug Enforcement Agency (DEA) regarding the legal status of THC-O acetate last year. This past Monday, the agency sent him a response letter formally clarifying the status of THC-O’s, specifically Delta-8 and -9 THC-O variants.


In that letter, Terrence L. Boos, Chief of DEA’s Drug & Chemical Evaluation Section, stated 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.”


So, because it is not a naturally occurring cannabinoid, like delta-9 THC and delta-8 THC, and must be produced through a synthetic chemical process, THC-O is federally prohibited. The DEA’s statement, while not completely solving the murky issues surrounding all hemp-based variants, does provide some much-needed action and legal clarity.


As Michelle Bodian, a partner at the law firm Vicente Sederberg, shares, “While the latest statement from DEA does not clarify the legal status of all novel hemp-derived cannabinoids, it does clarify that DEA believes Delta-9 THC-O and Delta-8 THC-O are controlled substances. Hopefully, there (will be) congressional action soon to address the legality of all hemp-derived cannabinoids, so the industry is not left with a patchwork of law, regulation, policy, and now, letter statements.”


"While the latest statement from DEA does not clarify the legal status of all novel hemp-derived cannabinoids, it does clarify that DEA believes Delta-9 THC-O and Delta-8 THC-O are controlled substances. Hopefully, there (will be) congressional action soon to address the legality of all hemp-derived cannabinoids, so the industry is not left with a patchwork of law, regulation, policy, and now, letter statements.”

- Michelle Bodian, Partner at the law firm Vicente Sederberg


Advocates and industry stakeholders contend that this piecemeal approach to the problem serves only to create more market and consumer confusion. They further believe that the demand for these “grey-area” cannabinoid products would evaporate overnight if the federal prohibition on marijuana were lifted, allowing people to use natural cannabis products.


However, change, particularly regarding divisive issues like marijuana legalization, is almost always an incremental process. In place of a rapid and decisive solution, actions like the one taken by the DEA this week will seemingly serve as the template for how the federal government will continue to approach controversies surrounding hemp, cannabis, and all its many legal permutations - carefully and slowly.


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UnoGeeks Training
Oct 17, 2023

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