DEA states that Delta-9-THCO, Delta-8-THCO are not hemp

In an email response sent Feb. 13 to Rod Kight of the Kight Law Office PC, the Drug Enforcement Administration (DEA) stated that delta-9-THCO and delta-8-THCO are synthetic and are not naturally occurring in cannabis do not count as hemp and are therefore controlled substances.

Kight’s letter was originally sent in August 2022 (and a follow-up email sent last week on February 7th) inquiring about the status of THC acetate esters (THCO) under the Controlled Substances Act (CSA).

Terrence L. Boos, Chief Drug & Chemical Evaluation Section Diversion Control Division, authored the response and explained the agency’s stance on Delta products. “The only substances the Drug Enforcement Administration (DEA) is aware of as the THC acetate ester are Delta-9-THCO (Delta-9-THC Acetate Ester) and Delta-8-THCO (Delta-8-THC Acetate Ester) . ‘ Buos said. “The Drug Enforcement Administration (DEA) has reviewed the CSA and its implementing regulations for the control status of these substances.”

Boos explained that the CSA recognizes “tetrahydrocannabinols” or THC as “naturally present in a plant of the genus Cannabis (cannabis plant) and as synthetic equivalents of the substances found in the cannabis plant and/or synthetic substances, derivatives, and their isomers of similar chemical structure and pharmacological activity like the substances contained in the plant.”

Based on this definition, neither delta-9 THCO nor delta-8 THCO are considered hemp by the DEA. “Delta-9-THCO and Delta-8-THCO do not occur naturally in the cannabis plant and can only be obtained synthetically and therefore do not fall within the definition of hemp,” Boos wrote.

He added that delta-9-THCO and delta-8-THCO have “similar chemical structures and pharmacological activities to those in the cannabis plant” and thus meet the definition of “tetrahydrocannabinols” that the agency places in Schedule I. He also included the molecular structure of Delta-9-THCO and Delta-8-THCO for reference at the end of the letter.

In a written statement from Michelle Bodian, a partner at Vicente Sederberg, Bodian explained what this news could mean for the industry. “While DEA’s recent statement does not clarify the legal status of all novel hemp-derived cannabinoids, it does clarify that DEA believes Delta-9THCO and Delta-8THCO are controlled substances,” said Michelle Bodian, Partner at Vicente Sederberg. “Hopefully there will soon be congressional action to address the legality of all hemp-derived cannabinoids, lest the industry be left with a patchwork of laws, regulations, policies and now written statements.”

While the government has remained silent on a definitive course of action regarding the regulation of Delta products, state legislatures have been left to take their own action.

Delta 8 products were banned in New York in May 2021. Ohio created new rules governing Delta-8 products, including production and sales, in June 2021. A new law introduced in Michigan in July 2021 also created regulations that limited the sale of Delta 8 products only to cannabis companies licensed by the Michigan Marijuana Regulatory Agency. Later in November 2021, a Texas judge issued an injunction removing Delta-8 from the state’s Schedule I substance list.

In May 2022, government agencies such as the Food and Drug Administration (FDA) issued warning letters to companies selling Delta 8 products. “The FDA is very concerned about the growing popularity of delta-8 THC products being sold online and in stores nationwide,” said Janet Woodcock, FDA’s Principal Deputy Commissioner. “These products often include claims that they treat or alleviate the side effects of a variety of diseases or medical disorders, such as cancer, multiple sclerosis, chronic pain, nausea, and anxiety.”

In the latest batch of Delta-related news, Connecticut Attorney General William Tong recently announced that his office is suing five retailers who sell unlicensed cannabis, specifically in relation to Delta-8-THC. “Cannabis products in Connecticut may not be sold by unlicensed retailers and must meet strict testing and packaging requirements. Period,” Tong said in a statement. “Any unlicensed retailer in Connecticut selling Delta-8 THC products that purport to contain high levels of THC is breaking the law and may be subject to both criminal and civil penalties.”