DEA Letter Discusses Legality of Minor Cannabinoids THCA, Delta-8 THC and More

The Drug Enforcement Administration (DEA) is taking a closer look at cannabinoids. Following a separate instance last month, where a DEA chief

The DEA said it was responding to a request for information about cannabis compounds and their schedule status under the Controlled Substances Act (CSA) in a letter dated June 9,

A Continued Crackdown on Minor Cannabinoids

According to the letter, delta-8 THC and THC-hexyl are considered tetrahydrocannabinols. If products with naturally derived cannabinoids contain no more than 0.3% delta-9 THC, they are considered legal hemp. Any products with more that 0.3% THC are considered a Schedule I controlled substance.

The continued disconnect surrounding the legality of minor cannabinoids is an after-effect of the 2018 Farm Bill, which legalized hemp and hemp-derived products with less than 0.3% THC. This paved the way for the now-booming legal hemp-derived cannabinoid industry. Today, consumers can buy any number of products, including those with enough hemp-derived THC to inspire a psychoactive high, so long as the THC by dry weight remains under 0.3%.

iStock

Plainly, most lawmakers didn’t necessarily expect this outcome after the 2018 Farm Bill, and now consumers — even in states without recreational cannabis laws — can legally pick up hemp-derived products that can get them high. Now, the DEA is backtracking and looking to regulate these products that have already been in the U.S. market now for years.

Delta-8 THC specifically has skyrocketed in popularity after hemp was legalized in the U.S. The cannabinoid is generally produced through a synthetic process, naturally converting CBD into delta-8. The DEA has previously said that all synthetically produced cannabinoids are Schedule I substances and is in the process of developing a final rule, likely to emphasize that synthetic cannabinoids are banned under the current statute.

Attorney Kight Rebuts

Kight’s Reddit post primarily focuses on delta-9 THCA, a non-intoxicating cannabinoid thought to possess anti-inflammatory properties. According to the DEA, delta-9 THCA must be accounted for in a post-decarboxylation test for “total THC” when assessing whether a plant can be classified as legal hemp or illegal cannabis.

“Accordingly, cannabis-derived delta-9-THCA does not meet the definition of hemp under the CSA because upon conversion for identification purposes as required by Congress, it is equivalent to delta-9-THC,” the letter reads. It was authored by Terrance Boos, chief of DEA’s Drug and Chemical Evaluation Section, who previously announced the potential for a lower THC limit on hemp products in May.

However, Kight said that the statute requiring post-decarboxylation only applies to production. While it must be factored into hemp analysis during production, the same does not apply to cannabis after harvest. The concentration of delta-9 THCA can actually increase after harvest. Kight said since the Farm Bill says post-production hemp products cannot contain more than 0.3% delta-9 THC — not total THC — that makes derivatives like delta-9 THCA federally legal.

iStock

“In summary, this DEA pronouncement is bound to create more confusion in an already confusing area of law; however, it should properly be read as simply restating the fact that hemp producers must comply with the total THC test in order to harvest their hemp,” Kight wrote. “Post-harvest (ie post-production), the 2018 Farm Bill’s definition of hemp clearly states that the delta-9 THC levels are what matters, not the levels of THCA.”

The DEA also said that, since hexahydrocannabinol (HHC) is synthetic, it also does not fall under the definition of hemp, arguing the same for hydrogenated CBD (H4-CBD), a synthetic and slightly psychoactive synthetic cannabinoid. Earlier this year, the DEA also clarified to Kight that delta-8 THOC-O and delta-9 THC-O don’t meet the federal definition of legal hemp and are considered illegal controlled substances.

According to Marijuana Moment, it’s still uncertain as to what exactly prompted the letter and who the DEA was responding to. It’s also unclear exactly where this conversation will go next, but many folks in the hemp and cannabis industries are eager to see the 2023 Farm Bill, which is currently being finalized, and what changes it may bring to the now bustling hemp-derived cannabinoid industry.