Delta-8 THC from hemp is legal
Delta-8 THC from hemp is legal

The DEA Suggests Delta-8 THC from Hemp is Legal, Confounding Some States Who Don't Agree

Is Delta-8 legal at the Federal level, the DEA says so!

Posted by:
Chiara C on Wednesday Nov 10, 2021

DEA Letter Appears to Suggest Hemp-Derived Delta-8 THC is Legal

leaked dea letter on delta-8thc

It is very easy for one that is not adequately knowledgeable about the workings of the legalization of cannabis and cannabinoids in the US to be lost. This is because though some facts are generally known and echoed everywhere, some are not so properly spelled out.

The general fact that is still well known is that cannabis and THC are classified as Schedule 1 narcotics by the FDA. This means it is considered illegal and procurement and use are liable to penalties and fines. Anyone that knows little about the cannabinoid called THC knows it is the active substance that gives the general euphoric feeling is delta-9 THC and it is not the only isomer of THC found in the cannabis plant matrix. There are other isomers of THC such as delta-8 and delta-10 and the laws around those cannabinoids are not so well spelled out. The general idea is that since delta-9 THC is a controlled substance, delta-8 and delta-10 are also controlled as well but there is a possibility the DEA might not see it that way.

The Drug Enforcement Administration (DEA) is largely saddled with the enforcement of laws around drugs to avoid illegal use, abuse, and misuse. The body has risen to the task massively over the years and readily helps the public interpret laws around drugs. A letter from a senior official in the administration surfaced on September 15, 202, and the contents of the letter seem to suggest the legality of hemp-derived delta-8 THC. The contents of the latter are still very much subject to varying interpretations but a closer look will show exactly why many believe it affirms the legality of the isomer.

The leaked letter of the DEA

The major reason why the said letter has gained much attention from different quarters is that it was from the office of Dr. Terrence L. Boos who is the Section Chief of the Drug and Chemical Evaluation Section. The section is under the Office of Diversion Control in the DEA and this particular letter was written to the Executive Secretary of the Board of Pharmacy of Alabama who requested a control status update on delta-8 THC. This means the contents of the letter can easily be used to juxtapose the current stand of the DEA as it applies to substance control for delta-8 THC.

From the abridged excerpt of the letter below, we see the views of the DEA on the CSA and delta-8 THC.

“[Delta-8 THC] is a tetrahydrocannabinol substance contained in the plant Cannabis sativa L. and also can be produced synthetically from non-cannabis materials. The [Controlled Substances Act] CSA classifies tetrahydrocannabinol as controlled in schedule I. … Subject to limited exceptions, for the CSA, the term ‘tetrahydrocannabinols’ means those ‘naturally contained in a plant of the genus Cannabis (cannabis plant), as well as synthetic equivalents of the substances contained in the cannabis plant and/or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity to those substances contained in the plant.’ … Thus, D8-THC synthetically produced from non-cannabis materials is controlled under the CSA as a ‘tetrahydrocannabinol.’

“The CSA, however, excludes from control ‘tetrahydrocannabinol in hemp…’ Hemp, in turn, is defined as ‘the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol (D9-THC) concentration of not more than 0.3 percent on a dry weight basis.’ … Accordingly, cannabinoids extracted from the cannabis plant that has a D9-THC concentration of not more than 0.3 percent on a dry weight basis meet the definition of ‘hemp’ and thus are not controlled under the CSA.”

Takeaways from the letter

It is obvious from the letter above that the DEA categorizes delta-8 THC into three classes based on sources. The first class is directly from Cannabis sativa plants its primary natural source. The second source is delta-8 THC created synthetically from hemp-derived cannabinoids and lastly those created from non-cannabis plant materials. This helps to explain which of the classes can be classified as controlled and from the details of the letter above, those derived from hemp are not controlled under the CSA.

Another area of dispute that might have been clarified by the letter has to do with synthetic cannabinoids. The DEA has initially stepped forward to address the issue sometime last year when it made the pronouncement that synthetic cannabinoids are controlled under the CSA. However, there is still controversy on what the DEA classifies as synthetic cannabinoids. Delta-8 THC is predominantly sourced from the second classification in the letter in which hemp-derived cannabinoids are converted to delta-8 THC. Seeing as hemp is legal under the Farm Bill as well as its derivatives, it means the legality of delta-8 THC from such products can be recognized as valid by the DEA. 

The coast is not clear yet

It might still be too soon to begin the celebration with respect to the validity of delta-8 THC because there is still some element of vagueness in the wordings of the letter. It is also important to state that the letter only sprung online because it was leaked and it is quite different from an official ruling or pronouncement followed with legal action. The Federal Analogue Act could still be easily used to classify delta-8 THC as illegal as it can be considered as an analog to a Schedule 1 controlled substance. The act explains that any substance that is substantially similar to a controlled substance is subject to the same prohibitory laws. However, this can also be debated because delta-8 THC is substantially similar to delta-9 THC from cannabis which is federally illegal, delta-9 THC from hemp which is legal at less than 0.3%.

Bottom line

While this might be good news to the ears of many, it is still advisable to tread with caution. The letter offers good logic to a possible public declaration by the DEA in the nearest future but till then, the coast is still not clear.






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