The Drug Enforcement Administration (DEA) is weighing in on the legal status of lesser known cannabinoids such as THCA, delta-8 THC and hydrogenated CBD.
In a letter dated June 9, DEA said it was responding to a request for information about the scheduling status of the cannabis components under the Controlled Substances Act (CSA). There’s been some confusion about the legality of minor cannabinoids since hemp containing up to 0.3 percent delta-9 THC by dry weight was federally legalized under the 2018 Farm Bill.
The letter, posted on Reddit and analyzed by attorney Rod Kight, says that delta-8 THC and THC-hexyl are considered tetrahydrocannabinols. If products containing those naturally derived cannabinoids contain no more than 0.3 percent delta-9 THC, they are regarded as legal hemp. If the cannabinoid exceeds the THC limit, it is a Schedule I controlled substance.
Delta-8 THC has grown in popularity since hemp was legalized, entering marketplaces across the U.S., including in states where marijuana remains prohibited. But it’s often produced through a synthetic process that converts natural CBD into the intoxicating cannabinoid, and DEA has previously made clear that all synthetically produced cannabinoids are Schedule I substances.
The agency is also in the process of developing a final rule that’s expected to emphasize the synthetic cannabinoid ban under existing statute.
Kight’s post about the new letter focuses largely on delta-9 THCA, which is non-intoxicating but thought to possess anti-inflammatory properties. DEA said that, when assessing whether a plant is legal hemp or illegal marijuana, delta-9 THCA must be accounted for in a post-decarboxylation test for “total THC.”
“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, authored by Terrance Boos, chief of DEA’s Drug and Chemical Evaluation Section, says.
But Kight argues that the statute requiring post-decarboxylation testing only applies to production. So while it must be factored into the analysis of hemp that’s actively being produced, the same is not true of cannabis after it’s been harvested. In the right conditions, the concentration of delta-9 THCA can increase following harvesting.
Because the Farm Bill specifically says that post-production hemp products cannot contain more than 0.3 percent delta-9 THC (rather than total THC), that makes natural derivatives like delta-9 THCA federally legal, the attorney says.
“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.”
It’s not clear who inquired with DEA about the scheduling questions that prompted this response letter. Marijuana Moment reached out to the agency to confirm the veracity of the letter, which is similar other other responses it has provided, but a representative was not immediately available.
DEA also said that hexahydrocannabinol (HHC) “does not occur naturally in the cannabis plant and can only be obtained synthetically, and therefore does not fall under the definition of hemp.” It asserts the same 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 does not contain any quantity of synthetically produced tetrahydrocannabinol (or any other controlled substance), it is not controlled under the CSA.”
Earlier this year, DEA also separately clarified to Kight that two cannabinoids that have emerged in state markets—delta-8 THC-O and delta-9 THC-O—do not meet the federal definition of legal hemp and are therefore considered illegal controlled substances.
In another letter last year, DEA also effectively acknowledged that the cannabis seeds are generally uncontrolled and legal under existing statute, regardless of how much THC might end up being produced by plants cultivated from those seeds.
The agency announced in 2020 that it had removed the prescription CBD medication Epidiolex from Schedule V of the CSA, fully descheduling the cannabis medication.
Meanwhile, a recent DEA report shows that the agency seized more than 5.7 million marijuana plants last year, a demonstrable increase that bucks the trend that’s been observed over recent years amid the state legalization movement. Agents made far fewer cannabis-related arrests in 2022, however.
A former DEA officer is also taking the agency to federal court after being fired for testing positive for THC that he attributes to legal hemp-derived CBD oil he took for pain relief.
Photo courtesy of Kimzy Nanney.