DEA Just Dropped a Bomb on the Hemp Industry. Part 2: Delta-8 THC

DEA ISSUED AN INTERIM FINAL RULE THAT AFFECTS Delta-8 THC.

Editor’s Note: This article is the second of two companion articles about the interim final rule issued by the DEA. It addresses the issue of delta-8 THC. The first article addresses work in progress hemp extract. You can read it by clicking here.  

In a long-anticipated action, the US Drug Enforcement Administration (DEA) issued an interim final rule (IFR) today on the implementation of the hemp provisions of the Agricultural Improvement Act of 2018 (Farm Bill) as it relates to marijuana and tetrahydrocannabinols (THC) under the Controlled Substances Act (CSA). You can read the IFR by clicking here.

As I will discuss, the IFR threatens to destroy the hemp/CBD industry. Fortunately, it is not set in stone. You can submit comments on it through October 20, 2020 by clicking here and following the online instructions at that site for submitting comments. To ensure proper handling of comments, you should reference “RIN 1117- AB53/ Docket No. DEA-500” on all correspondence.

In this article, I discuss the IFR’s criminalization of synthetic forms of hemp-derived THC, including what is arguably the hottest new cannabinoid on the market, delta-8 THC. 

I. INTRODUCTION

As most readers of this blog know, the DEA is the US federal agency charged with enforcing the CSA. Far from being even-handed, the DEA is the primary player and policy shaper in the notorious and failed “War on Drugs”, particularly with respect to cannabis. It has aggressively and persistently asserted itself into the hemp industry, despite the Farm Bill’s express removal of hemp, a lawful form of cannabis, from the CSA. The issuance of today’s IFR, which will be published in the Federal Register tomorrow (August 21, 2020) and is effective immediately, continues the DEA’s pattern of unwanted and aggressive interference with a lawful industry.

The IFR starts off by deceptively downplaying its intent: “This interim final rule merely conforms DEA’s regulations to the statutory amendments to the CSA that have already taken effect, and it does not add additional requirements to the regulations.” In fact, a careful reading of the IFR reveals its intent to be much different. It is not an overstatement to assert that adoption and enforcement of the IFR will severely disrupt, and potentially destroy, the hemp industry.

In this article, I discuss the DEA’s criminalization of delta-8 THC (D8), a relatively unknown cannabinoid derived from hemp that is quickly gaining in popularity. Even if you do not have much knowledge about D8, I hope you will not dismiss this issue since it is a particularly egregious example of overzealous regulation by the DEA that will continue to dog the entire hemp/CBD industry if it is allowed to persist.

II. THE DEA IS IMPROPERLY CRIMINALIZING DELTA-8 THC DERIVED FROM HEMP

My office receives calls about D8 every day. Of the minor cannabinoids, which include CBG, CBN, and CBC, D8 is rapidly moving into a major position. This is primarily due to the fact that it produces a psychoactive effect (ie, it gets you high) but is derived from lawful hemp. I recently posted a detailed description and legal analysis of D8, including a section on why the federal Analogue Act does not apply, which you can read by clicking here

It is clear that D8 which is naturally expressed in the hemp plant is not a controlled substance. However, producing and marketing it currently presents a unique legal issue: what is the legal status of D8 that is derived from cannabidiol (CBD) or some other hemp-derived cannabinoid? This issue is important because most D8 on the market is a derivative of CBD. Current hemp cultivars do not express D8 in sufficient concentrations or quantities to be economically viable to extract it for commercial purposes. However, converting CBD into D8 can be profitable under the right circumstances. The IFR contains language which appears to be directed at this form of D8:

The [2018 Farm Bill] does not impact the control status of synthetically derived tetrahydrocannabinols (for Controlled Substance Code Number 7370) because the statutory definition of “hemp” is limited to materials that are derived from the plant Cannabis sativa L. For synthetically derived tetrahydrocannabinols, the concentration of delta-9 THC is not a determining factor in whether the material is a controlled substance. All synthetically derived tetrahydrocannabinols remain schedule I controlled substances.” (emphasis added)

Based on this language, all cannabinoids that are derived from hemp with a delta-9 THC concentration not exceeding 0.3% are lawful. However, the Rule specifically states that any synthetically derived THC remains an illegal Schedule I controlled substance. This begs the question of what is meant by the term “synthetic”. According to Wikipedia, “a synthetic substance or synthetic compound refers to a substance that is man-made by synthesis, rather than being produced by nature. It also refers to a substance or compound formed under human control by any chemical reaction, either by chemical synthesis or by biosynthesis.” (emphasis added)

What this means is that D8 created by a chemical reaction (such as by converting CBD to D8 through the use of a catalyst) will likely be deemed by the DEA to be an illegal synthetic THC. Based on this position it is possible that the DEA will prosecute people and/or initiate civil forfeiture actions against people who are producing and/or selling D8.

The DEA has overstepped its bounds and misinterpreted the 2018 Farm Bill. Specifically, the 2018 Farm Bill includes hemp-derived “cannabinoids” and “derivatives” in its definition of “hemp”. In other words, cannabinoids and derivatives of hemp are themselves “hemp” under the statute. For this reason, a derivative of hemp-derived CBD is itself “hemp” under the statute. (I explain this in more detail in the article referenced above.)

Additionally, the DEA’s prohibition of “synthetic” THC is improper because the Farm Bill itself contemplates that synthetic cannabinoids will be exempt from the Controlled Substances Act (CSA). The Farm Bill expressly removes “derivatives” of hemp from the CSA. The Chemicool Dictionary defines a derivative as “a compound that can be imagined to arise or actually be synthesized from a parent compound by replacement of one atom with another atom or group of atoms.” Wikipedia defines a chemical derivative as “a compound that is derived from a similar compound by a chemical reaction.” In this context, a “synthetic” cannabinoid from hemp is the same thing as a “derivative” of hemp. Thus, stating that all synthesized THC is illegal, including D8 and other forms of THC that do not contain more than 0.3% delta-9 THC, is a direct contradiction of the statutory language in the 2018 Farm Bill, which expressly removes hemp derivatives from the CSA.

III. CONCLUSION

The issue of D8’s legal status is new, at least with respect to hemp. Additionally, while it has been known and researched for several decades, D8 is relatively new to consumers. My clients are reporting rapid growth and quick acceptance by the market. While the DEA’s position is not surprising, it is frustrating. For readers of my blog who are not interested in D8, this may appear to be a minor issue. However, it is a prime example of the DEA’s attempt to chip away at the significant progress that has been made with hemp and its cannabinoids during the past 5 years. I encourage you to comment on the link provided above and to reach out to your elected officials. While D8 may be totally unknown to most people, hemp is not. It is a popular issue with both Democrats and Republicans, and our leadership needs to understand that the DEA is threatening it.

Disclaimer: The legal positions expressed in this article are not intended to be, and should not be construed as, legal advice. The issues presented and legal theories asserted are novel. You should consult with an attorney before taking any action regarding these matters.

August 20, 2020

ATTORNEY ROD KIGHT REPRESENTS HEMP
BUSINESSES  THROUGHOUT THE WORLD.

Rod Kight is an international hemp lawyer. He represents businesses throughout the hemp industry. Additionally, Rod speaks at cannabis conferences, drafts and presents cannabis legislation to foreign governments, is regularly quoted on cannabis matters in the media, and is the editor of the Kight on Cannabis legal blog, which discusses legal issues affecting the cannabis industry. You can contact him by clicking here

 

 

24 comments on “DEA Just Dropped a Bomb on the Hemp Industry. Part 2: Delta-8 THCAdd yours →

  1. It’s really f….. up that when something may potentially work for people and they can get a job without thc in their system the dea wants ban it but won’t stop all the coke and heroin coming into the country.

      1. Thanks for commenting, Arlisha. I completely agree with you. Delta-8 THC and other cannabinoids can cause a positive result (ie, a “fail”) on certain types of drug tests. -Rod

  2. Another blatant over reach of our government at work running your life and mine when did we give up all of our rights to choose for ourselves ? Shameful yes it is a shame

    1. Nic- Thank you for reading and commenting on my blog. It does not appear that you followed the link to my more detailed legal analysis of D8, in which I address the federal Analogue Act and why it does not apply. You can read that analysis by clicking here. -Rod

      1. You’ve taken some heavy logic leaps. First of all, D8 produces identical effects as D9. It is also a very close analog. Your argument seems to hinge on the psychoactive effects of D8 which, having sampled them both in pure form i can say they are absolutely identical in effect. I would argue that if your lab got busted today and you were producing D8, your argument that its not psychoactive would likely not hold up in court. The DEA would also likely charge you under the analog act.

        1. Nic I disagree with your subjective review of the effects of the two. D8 to me is much more therapeutic and manageable. It’s not synthetic, it’s organically derived. Isomers are included in the language of the law.

  3. Mr. Kight,

    You, like many other attorneys who are opining on the D-8 issue, are missing a major component of the CSA that is extremely relevant here. The DEA created the Federal Analogue Act, 21 U.S.C. § 813 for issues just like this. How D-8 is arrived at is really irrelevant in this case as it is “substantially similar” to D-9 THC in both form and effect. The FAA was specifically created for situations like this where chemists slightly alter a compound intended for human consumption, but its effects are still “substantially similar.” Labs selling D-8 outside of licensed dispensaries are in clear violation of federal law and should be prosecuted. D-8, just like D-9, needs to be controlled at the state level so that it is only sold to adults through licensed dispensaries.

    1. Mr. Field- Thank you for reading and commenting on my blog. It does not appear that you followed the link to my more detailed legal analysis of D8, in which I address the federal Analogue Act and why it does not apply. You can read that analysis by clicking here. -Rod

    2. Jeff I am having a hard time understanding your logic for enforcement. I hear a lot that cannabis is “harmful” and therefore should be illegal. Cigarettes are harmful, legal and regulated. I hear a lot that cannabis is intoxicating therefore it should be illegal. Alcohol is intoxicating, harmful, legal and regulated. What is the logic and precedent behind making something safer than soda federally illegal? The state’s already decided CBD and hemp should be legal. WE the PEOPLE already want cannabis fully legal. Who else are you rooting for?

  4. I think that despite the DEA emphasizing this as a schedule 1 substance, the state laws will have to be the ones to catch up, considering that MJ is still federally a schedule 1. Blanket solution would be to federally ban shipment of it but that could effect CBD since law makers often have a limited understanding of the industry in the first place.

    In my non legal opinion, I would believe that the states decision model would apply as it does for adult use or medical THC and will be tied up for a year, at least, to write up the bills. It simply becomes a risk for anyone who chooses to carry on business as usual with todays announcement. Much like the dispensary raids in the early days.

  5. Thanks for the clarification on this matter and the article. I just find it amazing with all the things going on in the United States this moment that this becomes a government priority. Big Pharmacy is drooling right now. They must think it will cure Covid or something. Anything to make sure the the rich get richer. FDA and DEA should have been de-funded along time ago.

  6. Excellent article. Thank you. The DEA and the FDA will continue to overreact to this plant whose genetics are matched to human genetics for the health of our Endocannabinoid systems because they are ignorant of the science involved and are being pressured to find ways to curb industry growth until others can control and monetize it through taxes or the usual monopolization of growth industries. What has to happen is a change of perception of plants as medicine and combine this industry’s political power with that of the Natural Products industry. Both have similar challenges and challengers in hockey stick growth sectors of Integrative and preventative medicine. A key foundational leg to be pulled out from under the CSA platform is its legitimacy. Its formation was political, not science based. It was formed as a political tool to disrupt and incarcerate communities of POC and progressives. The Schedule itself is not based in science and is propaganda. Federal decriminalization of cannabis and hemp as well as vacting non violent drug convictions would go a long way in illustrating these points. Its a plant that matches our genetics. Restricting its use goes against the natural order. It is criminal that it is criminal. AC Braddock

  7. So many jobs lost just like that. Thank you for you work in the hemp industry. I was hired as a sales rep and was doing very well considering the economy collapsing. Hopefully things are reconsidered since delta-8 isn’t as psychoactive as delta-9 and treats many patients in states that otherwise can’t be benefited.

  8. Dear Sirs,

    I wrote this letter in comments to the DEA – We have to stand up for the right to choose.

    I am a small CBD Store business owner in Florida. I want to voice my opinion on the cannabinoids in cbd hemp and delta 8 and the health benefits for our customers. I have done lots of research over the years about cbd products and they have helped me recover from a car wreck, arthritis, a concussion and pain. The cannabinoids cbd, cbg, cbn and delta 8 THC along with others work together for a healthy alternative for natural medicines and healing properties. A lot of people don’t want to take prescription drugs because of all the side affects. Other people don’t want to use medical marijuana because they don’t want that concentrated high affect. Studies show that Hemp cbd delta 8 with all the cannabinoids has helped many children and prescription drugs and medical marijuana was to strong.

    This is a better alternative that is effective and helps many of all ages to get better, deal with pain while functioning day to day overcoming anxiety and pain. Please rethink and consider these products. They help many people and are natural alternatives. These products help me and others with pain and anxiety daily. It helps me and others focus and I am a business women that works hard every day. I want to be a voice because I also have cancer patients that don’t want to use medical marijuana and their Dr’s send them into my store to get CBD delta 8 products that help them with suffering, nausea, pain and anxiety.

    My sister is recovering right now from chemo and I see how it is helping her. Please don’t take this other medicine away from the people in the middle that don’t want to use prescription drugs.
    I am speaking for myself , my customers and others CBD and Delta 8 has helped me in many ways to continue to work and have a better quality of life as well as hundreds of others even pets. Please take my words into consideration as well as others these products are and will help!

    Thank You,
    Sherri Lynn

  9. Thanks Rod, I appreciate you informing us and we will
    Mobilize our Veteran community to contact there reps and senators to ensure the DEA stays out of hemp related Cannabinoids and products produced.

  10. Mr. Kight,

    If I were to sell D8 and was arrested tomorrow looking at 3 to 5 would you be willing to take my place in prison? Your argument seems sound but the DEA is the enforcement arm that I do not want to cross just to test out your perspective theory hoping that a Federal Court would find in my favor.

  11. Pushing the limits is going to get the whole industry shut down. Keep making stuff in labs and the fed is going to regulate it even more. Doesn’t matter what the law is today, tomorrow your going to be without an industry

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