The U.S. Drug Enforcement Administration has taken a stance – albeit fairly quietly – that synthetic cannabinoids such as Delta-8-THCO and Delta-9-THCO are still controlled substances and thus illegal, even if they’re derived from hemp.
In a letter to North Carolina attorney Rod Kight, DEA Drug & Chemical Evaluation Section Chief Terrence Boos wrote that those two specific cannabinoids “do not occur naturally in the cannabis plant and can only be obtained synthetically, and therefore do not fall under the definition of hemp.”
Attorney Michelle Bodian said the news is somewhat tough to interpret for the growing cannabis industry, in part because it’s not clear just how many businesses traffic in synthetic and novel cannabinoids.
But, she said, what’s important is there appears to be a clear process by which stakeholders can ask the DEA if particular cannabinoids are federally legal or not, since the U.S. legalized hemp in 2018 but has kept marijuana banned as a Schedule 1 controlled substance.
“To me, it’s one more layer of analysis that has to be done in order to determine what kind of products can be legally sold in the United States,” Bodian said.
“You can do a lot of legal analysis, but there’s only so many known cannabinoids in the plant. I don’t think we’ve all agreed on what all of those known cannabinoids are,” she said.
“It would be helpful if the DEA had an addendum to this letter, that said, ‘And by the way, here’s all the (cannabinoids) we believe are naturally occurring,’ especially in the context of all these novel cannabinoids on the market.”
Bodian said the most recent DEA letter about THCO should also be viewed as a “companion” letter to a 2021 missive the agency sent to the Alabama Board of Pharmacy, in which it clarified its view that Delta-8 THC made from hemp is federally legal. That led to a boom in the Delta-8 industry and then a subsequent crackdown by several state legislatures, which chose to ban the products.
But until the DEA comes out and makes its stance more public and clear, Bodian predicted that a lot of the hemp market will be “regulation by letter.” The DEA doesn’t publicize its answers. In this case, it was the attorney, Kight, who circulated the response he got from the DEA, Bodian said. And it was the same in 2021 with the Alabama Board of Pharmacy, she said.
“What if there are five more of these out there, but individuals aren’t publishing them? So it does make it challenging, to get access to the data, if it isn’t publicly available,” Bodian said. “You’d only be able to know this if you did a (Freedom of Information Act) request.”