What is THC-O and is it legal?

For years, Delta-9 THC was the only cannabinoid that seemed to care about anyone. Cannabinoids are compounds found in or derived from cannabis (or in some cases other organic materials). Delta-9 is the component in marijuana that gets users high. It’s not the only compound in the cannabis plant, however.

As of 2016, CBD became a hugely popular, non-psychoactive cannabinoid that could be derived from hemp, which is cannabis with less than 0.3% Delta-9-THC on a dry weight basis. Then came Delta-8 THC, which exploded in popularity as the next big thing in cannabis.

With this in mind, we would like to inform our readers about other emerging cannabinoids in the Green Light Law Blog. Today we’re going to focus on the legality of THC-O and more.

Photo by Cavan Images / Getty Images

What is THC-O?

THC-O-Acetate (THC-O) is a minor cannabinoid that is converted from Delta-8-THC (which is usually converted from CBD first) or from Delta-9-THC. THC-O does not occur naturally in the cannabis plant, which sets it apart from many other naturally occurring cannabinoids such as CBD and Delta-9-THC. Even Delta-8 can be found in traces in the cannabis plant, although most Delta-8 products contain Delta-8, which has been converted from CBD.

Please see this MJBizDaily article for more information. At least one patent has been granted for the process of converting cannabis oil to THC-O: US Patent No. 10,792,584. THC-O is strong. It is described as having triple the psychoactive effects of Delta-9 THC and lasting much longer.

What is the legal status of THC-O made from hemp?

THC-O extracted from hemp is most likely classified as an illegal product by the Drug Enforcement Administration (DEA). The Farm Bill 2018 amended the Controlled Substances Act (CSA) to exclude “Tetrahydrocannabinols in Hemp” from the CSA. THC-O is not specifically listed as a controlled substance. You’d think that this Farm Bill reference would cover THC-O, making it fall outside the boundaries of the CSA. However, the analysis is more complicated because THC-O is not naturally found in cannabis, including hemp. Hence, it can be argued that THC-O is not a tetrahydrocannabinol in hemp, although it is derived from cannabinoids in hemp.

RELATED: Oregon’s New Approach to Hemp Products and Delta-8 THC

The manufacturing process of THC-O is also of legal importance. The DEA has made its position with regard to synthetically derived cannabinoids clear in its hemp rule published in August 2020:

That [2018 Farm Bill] has no influence on the control status of synthetically obtained tetrahydrocannabinols (for Controlled Substance Code Number 7370), as the legal definition of “hemp” is limited to materials that come from the Cannabis sativa L plant. For synthetically obtained tetrahydrocannabinols, the concentration of Δ9-THC is not a decisive factor for whether the material is a controlled substance. All synthetically obtained tetrahydrocannabinols remain controlled substances according to Scheme I.

Since THC-O is made in a laboratory, it is likely that it will be classified as a “synthetic cannabinoid” by the DEA. The term “synthetic” is not clearly defined in the DEA regulations or the CSA. According to a DEA Resource Guide from 2017 “synthetic cannabinoids are not organic, but chemical compounds that are made in a laboratory”. Black’s Law Dictionary defines “synthetic” as “[a] Product that is not produced naturally, but is produced through synthesis. ”“ Synthesis ”in turn means the“[p]Combination of substances into a new substance. Based on these definitions and the DEA Rule, it seems likely that the DEA is considering or considering THC-O made from hemp as a controlled substance.

RELATED: Hemp Industries Association Calls for Regulation, Not Prohibition, of Delta-8 THC

In addition, there is the Federal Analog Act. 21 USC 813. The Analogue Act essentially extends the CSA to products that are analogues of a controlled substance. For example, in the mid-2000s, the Analogue Act was used to classify synthetic THC (also known as Spice) as a controlled substance. Typically, the DEA has to go through a process to classify a new controlled substance that requires public comment, but if a substance is an analogue it is not required.

The Analogue Act defines a “controlled substance analog” as a substance – (i) whose chemical structure is substantially similar to the chemical structure of a controlled substance in Schedule I or II; (ii) that has a central nervous system stimulatory, depressant, or hallucinogenic effect substantially similar or greater to the central nervous system stimulatory, depressant, or hallucinogenic effect of a controlled substance in Appendix I or II. ”21 USC 802 (32). Delta-9 THC is a List I substance and THC-O is chemically similar to Delta-9 THC, resulting in a high that is likely stronger than Delta-9. Under the Analogue Act, THC-O would very likely be considered an analog.

Photo by Christina Winter via Unsplash

State laws can also take into account the legality of THC-O. I recently wrote about the effects of HB 3000 on Delta-8 products in Oregon and the role of the Oregon Liquor and Cannabis Commission (OLCC) in regulating hemp products. HB 3000 defines a new class of products called “adult cannabis products” that cannot be sold to anyone under the age of 21. The presence of “man-made cannabinoids” makes a product an adult cannabis product. According to HB 3000, “man-made cannabinoid” means a “chemical substance that is created by a chemical reaction that changes the molecular structure of any chemical substance that comes from the cannabis family Cannabaceae”. In Oregon, THC-O derived from hemp may not be specifically prohibited, but restricted. Other states may ban all forms of THC from hemp, so it is important to examine how state laws affect the legality issue.

Bottom line

Since THC-O is not naturally found in hemp, its legality is highly questionable given the DEA’s position on synthesized cannabinoids and the Analogue Act. The sale of THC-O opens up criminal risks in connection with drug trafficking for all involved. While the DEA is unlikely to allocate limited resources to THC-O, it is not beyond the realm of possibility. Be careful out there and don’t hesitate to get in touch with any questions about THC-O. We’ll be writing about other smaller cannabinoids as well, so stay tuned for the Green Light Law blog.

Daniel Shortt is a Seattle, Washington-based corporate and regulatory attorney who works extensively with entrepreneurs in the cannabis industry. You can reach him at info @gl-lg.com or (206) 430-1336.

This article originally appeared in the Green Light Law Group and was republished with permission.