A recent email from a senior official of the Drug Enforcement Administration (DEA) makes it clear that delta-8 THC is a controlled substance when synthesized using legal CBD.
In recent years, the market for delta-8 has grown rapidly following federal legalization of CBD and hemp derivatives. Cannabinoid, which is highly intoxicating, has also been the subject of numerous lawsuits against state policies that prohibit its sale.
Attorney Shane Pennington wrote in a post on Substack “On Drugs”, on Friday, that he had been reviewing these lawsuits when he stumbled across a letter dated 2021 from DEA Drug & Chemical Evaluation Section Head Terrence Boos which clarified the interpretation of statute by the agency.
Boos wrote that the “Agriculture Improvement Act” does not exempt delta-8 THC if it is synthesized by starting with CBD. He was referring to the 2018 Farm Bill which legalized hemp on a federal level. “Any amount of delta-8 THC obtained chemically is a controlled drug.”
It’s not necessarily new information. However, it is explained in plain English that may help to clear up any confusion regarding what is allowed and not permitted by the DEA.
Boos also explained at the 2023 Supply Chain Conference held in May that synthetic cannabinoids were banned. He said the DEA was in the process of drafting a final rule that would formally clarify this policy on the recommendation of U.S. Department of Health and Human Services.
Boos told an attorney in February that the minor cannabinoids delta-8-THC-0 and delta-9-THC-O were prohibited, because they could only be produced synthetically.
Note that small amounts of delta-8-THC can occur naturally in cannabis. The cannabinoid is therefore legal when it’s extracted directly from the plant. DEA confirmed this in 2021. The products that contain delta-8 THC and are currently being sold usually come from a synthesized process.
Pennington stated he is not convinced that Boos’ interpretation of the Farm Bill statute is accurate, because there are still questions regarding the definitions of “derivative” (as in “extract”) and “derivative”, which may conflict with the agency’s position.
In a Substack follow-up post that was published for subscribers on Sunday, Pennington, and attorney Matthew Zorn, expanded on this argument. They explained how hemp was made legal by excluding it under the definition of THC and marijuana (i.e. In a follow-up Substack a href=”https://ondrugs.substack.com/p/counterpoint-hempderivedcbddelta” rel=”noopener” target=”_blank”>post/a> for subscribers that was published on Sunday, Pennington and attorney Matthew Zorn expanded on that argument, explaining how hemp was legalized by excluding it from the definition of marijuana and THC (i.e.
DEA also has a history of using statutory language to prohibit derivatives and extracts. The attorneys noted that the Farm Bill uses the same broad language to exclude hemp derivatives and hemp from the CSA. This, they said, is a crack in DEA logic regarding delta-8 THC.
They wrote: “Treating delta-8 derived from hemp in a way that is inconsistent with how the agency has treated other substances before without explanation is arbitrary and capricious action.”
A federal appeals court, in support of their argument, ruled that the existing statute exempts delta-8 THC from control, because the law is “silent”, while clearly legalizing the minor cannabinoid.
Pennington and Zorn, however, have emphasized the importance of understanding DEA’s point of view because, unless Congress or courts address it, “Boos’s views are authoritative, and likely to receive some deference from a judge.”
Despite the DEA’s constant remarks regarding delta-8 THC products, the market is still significant. Several states have banned them. However, as far as federal enforcement is concerned, the Food and Drug Administration simply sent warnings to selected companies it identified as being particularly problematic.
The DEA announced separately in 2020 that the CBD prescription medication Epidiolex had been removed from Schedule V of CSA, completely descheduling cannabis medication.
DEA Administrator Anne Milgram told a House Judiciary Committee this month she would keep an open mind when HHS submits a scientific evaluation and scheduling recommendation for marijuana as part of the administrative review ordered by President Joe Biden last year.
She said the president also sent a letter to the Attorney General and HHS Secretary to start this process. When an attorney requested this letter through HHS, it said that it did not have any records. The DEA referred Marijuana Moment’s question regarding the letter to White House. They have not responded to a clarification request.
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The post DEA considers Delta-8-THC products federally illegal when synthesized from CBD, official says in newly revealed email first appeared on Marijuana Minute.
