Delta-8 THC Conundrum: Unveiling DEA’s Stance on Thriving Market
Amidst the rapid expansion of the delta-8 products market, a recent discovery has brought the Drug Enforcement Administration’s (DEA) position on the scheduling status of delta-8 THC into sharp focus. An attorney has unearthed an email from a top DEA official that leaves no room for doubt: when synthesized from legal CBD, the agency deems delta-8 THC to be a prohibited controlled substance.
The allure of delta-8 products has grown in recent years, following the federal legalization of hemp and its naturally derived compounds like CBD. However, this intoxicating cannabinoid finds itself at the heart of several legal battles challenging state policies that have prohibited its sale.
Shane Pennington, an attorney, stumbled upon a 2021 letter from DEA Drug & Chemical Evaluation Section Chief Terrence Boos during his review of these lawsuits. The letter clarifies the agency’s interpretation of existing statute regarding delta-8 THC.
Chief Boos’s letter explicitly states, “Producing delta-8-THC through a chemical process starting from CBD renders it synthetic, thereby not exempted by the [Agriculture Improvement Act].” This Act, also known as the 2018 Farm Bill, legalized hemp on a federal level. Boos emphasized, “Any quantity of delta-8-THC obtained through chemical means is a controlled substance.”
While this insight isn’t groundbreaking, it presents the information in straightforward language that could alleviate any lingering ambiguity surrounding DEA’s stance.
Boos reiterated a similar point at the agency’s 2023 Supply Chain Conference in May. He indicated that synthetic cannabinoids are unequivocally prohibited. He also mentioned that DEA is in the process of developing a final rule to officially clarify this policy, aligning with the U.S. Department of Health and Human Services (HHS) recommendation.
Furthermore, in a conversation with a lawyer in February, Boos underlined that minor cannabinoids delta-8 THC-0 and delta-9 THC-O are also barred due to their synthetic production process.
It’s important to note that trace amounts of delta-8 THC can naturally occur in cannabis, making the compound legal if extracted from the plant itself. DEA confirmed this in 2021. However, most delta-8 THC products on the market are the result of a synthetic procedure.
Pennington isn’t fully convinced that Boos’s interpretation of the statute is entirely accurate. He points out unresolved questions about the definitions of “derivative” and “extract” in the Farm Bill, which could clash with DEA’s position.
In a subsequent Substack post, Pennington and attorney Matthew Zorn elaborated on this argument, highlighting how hemp’s legalization excluded it from the Controlled Substances Act’s (CSA) definitions of marijuana and synthetic THC. They argue this suggests that Congress intended to permit semi-synthetic hemp derivatives like delta-8 THC.
Moreover, in past instances of drug prohibition, DEA has typically employed broad statutory language that encompasses derivatives and extracts. Interestingly, this all-encompassing language in the Farm Bill excludes hemp and its derivatives from CSA. Pennington and Zorn emphasize this inconsistency in DEA’s logic concerning delta-8 THC.
They write, “Treating hemp-derived delta-8 in a manner inconsistent from how it has treated other substances in the past without explanation is classic arbitrary and capricious agency action.”
Supporting their viewpoint, a federal appeals court ruled last year that delta-8 THC’s exemption from control is implied in the existing statute, as the law remains “silent” about this minor cannabinoid while expressly legalizing hemp extracts and derivatives.
Despite the consistent assertions from DEA officials about delta-8 THC’s status, a thriving market for these products persists. While certain states have moved to ban them, the federal response from the Food and Drug Administration (FDA) has been limited to issuing warning letters to specific companies identified as problematic.
In a separate development, DEA Administrator Anne Milgram mentioned during a House Judiciary Committee hearing that she maintains an open mind regarding marijuana. She awaits a scientific assessment and scheduling recommendation from HHS, part of an administrative review directed by President Joe Biden last year.
It’s worth noting that the president purportedly initiated this process with a “letter” to the attorney general and HHS secretary. However, when an attorney requested this letter through a Freedom of Information Act (FOIA) inquiry, HHS responded that it possessed “no records” of such a letter. DEA referred questions about the letter to the White House, which has yet to respond to clarification requests.
