The Drug Enforcement Administration (DEA) is evaluating the legal status of lesser known cannabinoids such as THCA, delta-8 THC and hydrogenated CBD.
In a letter dated June 9, the DEA said it was responding to a request for information about the scheduling status of cannabis components under the Controlled Substances Act (CSA). There has been some confusion about the legality of minor cannabinoids since hemp containing up to 0.3% delta-9 THC by dry weight was federally legalized under the 2018 Farm Bill.
The letter, posted on Reddit and reviewed by attorney Rod Kight, states that delta-8 THC and THC-hexyl are considered tetrahydrocannabinols. If products containing those naturally derived cannabinoids contain no more than 0.3% delta-9 THC, they are considered legal hemp. If the cannabinoid exceeds the THC limit, it is a Schedule I controlled substance.
Delta-8 THC has grown in popularity since hemp was legalized, entering markets across the United States, including states where marijuana remains prohibited. But it is often produced through a synthetic process that converts natural CBD into the intoxicating cannabinoid, and the DEA has previously clarified that all shortly the cannabinoids produced are Schedule I substances.
The agency is also in the process of developing a final rule that should emphasize the prohibition of synthetic cannabinoids under existing statute.
Kight’s post on the new letter focuses primarily on delta-9 THCA, which isn’t intoxicating but is believed to have anti-inflammatory properties. The DEA has stated that when evaluating whether a plant is legal hemp or illegal marijuana, delta-9 THCA should be considered in a post-decarboxylation test for “total THC.”
“Consequently, cannabis-derived delta-9-THCA does not meet the definition of hemp under the CSA because after conversion for identification purposes as required by Congress, it is equivalent to delta-9-THC, the letter, written by Terrance Boos, head of the DEA’s drug and chemical evaluation section, says.
But Kight argues that the statute requiring post-decarboxylation testing only applies to manufacturing. So while it needs to be taken into consideration when analyzing hemp that is actively produced, the same does not apply to cannabis after it has been harvested. Under the right conditions, the concentration of delta-9 THCA can increase after harvest.
Since the Farm Bill specifically states that post-production hemp products cannot contain more than 0.3% delta-9 THC (rather than total THC), which makes natural derivatives like delta-9 THCA, says the lawyer.
“In summary, this ruling by the DEA is bound to create more confusion in an already confusing area of law; however, it should properly be read as a simple restatement that hemp producers must meet the total THC test to harvest their hemp,” Kight wrote. “After harvest (i.e. post-production), the definition of hemp of the 2018 Farm Bills clearly states that THC delta-9 levels are what matters, not THCA levels.”
It is unclear who asked the DEA the programming questions that led to this response letter. Marijuana Moment reached out to the agency to confirm the veracity of the letter, which is similar to other responses it has provided, but a representative was not immediately available.
The DEA also stated that hexahydrocannabinol (HHC) “does not occur naturally in the cannabis plant and can only be obtained synthetically, and therefore falls outside the definition of hemp.” It claims the same about H4-CBD.
“If the product contains any amount of synthetically produced tetrahydrocannabinol, it is controlled in schedule I of the CSA, unless it is specifically exempt or listed in another schedule (for example, Marinol in schedule III under 21 CFR 1308.13(g) ( 1))”, the letter says. “If the product does not contain any amount of synthetically produced tetrahydrocannabinol (or any other controlled substance), it is not controlled under the CSA.”
Earlier this year, the DEA also separately clarified to Kight that two cannabinoids that surfaced in state markets delta-8 THC-O and delta-9 THC-O do not meet the federal definition of legal hemp and are therefore considered controlled substances. illegal.
In another letter last year, the DEA also actually acknowledged that cannabis seeds are generally uncontrolled and legal under existing statute, regardless of how much THC might end up being produced by the plants grown from those seeds.
The agency announced in 2020 that it had removed the prescribing CBD drug Epidiolex from Schedule V of the CSA, completely nullifying cannabis-based drug scheduling.
Meanwhile, a recent DEA report shows that the agency seized more than 5.7 million marijuana plants last year, a demonstrable increase that runs counter to the trend seen during the state’s legalization movement in recent years. However, officers made far fewer cannabis-related arrests in 2022.
A former DEA officer is also taking the agency to federal court after he was fired for testing positive for THC which he attributes to the legal hemp-derived CBD oil he took for pain relief.
Sales of recreational marijuana in Connecticut hit record highs in May, surpassing medical cannabis purchases for the first time
Photo courtesy of Kimzy Nanney.
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