The Drug Enforcement Administration (DEA), is weighing in with its opinion on the legal status for lesser-known cannabinoids, such as THCA and delta-8 THC.
In a June 9 letter, DEA responded to a request from a member of the public for information on the status of cannabis components in the Controlled Substances Act. Since the 2018 Farm Bill, there has been confusion over the legality minor cannabinoids. Hemp containing up 0.3 percent delta-9-THC by weight is federally legalized.
The letter, posted on Reddit and analyzed by attorney Rod Kight, says that delta-8 THC and THC-hexyl are considered tetrahydrocannabinols. Products containing these naturally derived cannabinoids that contain less than 0.3 percent Delta-9 THC are considered legal hemp. Cannabinoids that exceed the THC limit are Schedule I controlled substances.
Delta-8 THC is gaining in popularity in the U.S. since hemp has been legalized. It’s now available in many states that still prohibit marijuana. It’s produced by a synthetic method that turns natural CBD into an intoxicating cannabinoid. The DEA has stated that all synthetically produced cannabis are Schedule I drugs.
The agency is also developing a final rule that will emphasize the ban on synthetic cannabinoids under the existing statute.
Kight’s blog post on the new letter is largely focused on delta-9-THCA. This substance, while non-intoxicating, may have anti-inflammatory effects. DEA stated that delta-9 THCA is a factor in determining whether a plant was legal hemp or marijuana.
According to Terrance Boos’ letter, the chief of the DEA’s Chemical and Drug Evaluation Section, the letter states that delta-9THC derived from cannabis does not meet the definition for hemp under the CSA, because it, after conversion, is identical to delta-9THC.
Kight claims that the law requiring testing after decarboxylation only applies to production. While it is important to consider in the analysis of hemp which is actively being produced, it does not apply to cannabis that has been harvested. The concentration of delta-9 THCA after harvesting can increase under the right conditions.
The attorney says that because the Farm Bill specifies that hemp products can’t contain more than 0.3 percent delta-9-THC (rather than total THCA), natural derivatives such as delta-9-THCA are federally legal.
Kight wrote: “In summary this DEA announcement is bound to cause more confusion to an already confusing legal area; however, the statement should be properly read as simply reiterating that hemp producers are required to comply with the THC total test to harvest their hemp.” The 2018 Farm Bill defines hemp as a plant that is harvested (i.e. after production) and the delta-9 THC level is what counts, not THCA levels.
It is not clear who contacted DEA regarding the scheduling issues that prompted this response. Marijuana Moment contacted the agency to confirm that the letter was true, as it is consistent with other responses. However, a representative wasn’t immediately available.
The DEA has also stated that hexahydrocannabinol, or HHC, “doesn’t occur naturally in cannabis plants and can only be synthesized and therefore doesn’t fall under the definition hemp.” They have said the same thing about H4 CBD.
“If the product contains any quantity of synthetically produced tetrahydrocannabinol, it is controlled in schedule I of the CSA, unless it is specifically exempted or listed in another schedule (e.g., Marinol in schedule III under 21 CFR 1308.13(g)(1)),” the letter says. If the product contains no synthetically produced tetrahydrocannabinol, or any other controlled substance, it is not under the CSA.
Earlier this summer, DEA separately informed Kight that the two cannabinoids that were appearing on state markets –delta-8-THC-O and Delta-9-THC-O — did not meet federal definitions of legal hemp. They are therefore illegal controlled substances.
In a letter sent last year, DEA acknowledged in a similar way that cannabis seeds are uncontrolled under the existing law, and therefore legal, irrespective of how much THC plants cultivated from these seeds might produce.
In 2020, the agency announced that the CBD prescription medication Epidiolex had been removed from Schedule V under the CSA. This de-scheduling of cannabis medicine was complete.
A recent DEA report indicates that the agency seized over 5.7 million marijuana plants in the past year. This is a significant increase, which bucks the trend observed during the recent years of the state legalization movements. In 2022, agents made far fewer arrests related to cannabis.
Former DEA officers are also suing the agency in federal court for being fired after testing positive for THC, which they attribute to CBD oil derived from hemp that was legal and taken for pain relief.
Connecticut Recreational Marijuana sales reached record high in May, surpassing medical cannabis purchases for the first time
Photo by Kimzy Nanny.
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