Is D8 From Hemp a Controlled Substance? DEA Says “No”.

We have spent quite a bit of time at Kight Law during the past year writing, speaking, and consulting with clients on the issue of whether or not delta-8 tetrahydrocannabinol (“D8”) and other related cannabinoids from hemp are controlled substances under federal law. Our position, that D8 is not a controlled substance under federal law, is most directly addressed in the legal position statement we prepared for the Hemp Industries Association (“HIA”), the leading national hemp organization in the USA. You can read the position statement by clicking here. 

Our position on D8 was recently confirmed by the Drug Enforcement Administration (“DEA”) in two separate public statements. 

I. DEA’s First Public Statement About D8- Town Hall Meeting

The first statement is in the form of a video webinar called a “Town Hall with USDA and DEA” conducted by the Florida Department of Agriculture and Consumer Services (“FLDACS”) on June 24, 2021. In the Town Hall, the USDA is represented by Bill Richmond, Chief of the US Domestic Hemp Production Program. The DEA is represented by Sean Mitchell, Chief of Intergovernmental Affairs. FLDACS is represented by Holly Bell, Director of Cannabis. 

During the Town Hall, Ms. Bell asks Mr. Mitchell of the DEA the following question about D8:

“D8 is legal to be sold in Florida. For it to be illegal would take statutory change. And we have a statement out on our website, which you can read. And how we monitor and regulate that it, and we do monitor and regulate it, is that we pull products and test them for their total THC, which is the formula we use here, which is the THCA times .8777 plus the delta-9. So that number must be below 0.3 or less….. and I know that, Sean has received several questions saying that DEA is making, has said that D8 is illegal. Would you take a quick second and talk about that?”

In response, Mr. Mitchell states the following for the DEA:

“Sure, and I also want to expand beyond delta-8. There’s delta-8, there’s delta-10, there’s all kind of different cannabinoids that are associated with cannabis sativa l that are kind of out there and making the rounds. So what I want to say, and I’ll be very, very deliberate and clear. At this time, I repeat again, at this time, per the Farm Bill, the only thing that is a controlled substance is delta-9 THC greater than 0.3% on a dry-weight basis.”

You can view this interchange, along with helpful commentary by Lukas Gilkey of Hometown Hero, by clicking here or watching below.

II. DEA’s Second Public Statement about D8- Letter to the Alabama Board of Pharmacy

DEA publicly addressed the legal status of D8 again in the form of a response letter to the Alabama Board of Pharmacy (“ABOP”) dated September 15, 2021. In this letter, Terrence L. Boos, Ph.D., Chief of the DEA’s Drug and Chemical Evaluation Section of the Diversion Control Division, responds to the ABOP’s request for the controlled status of D8. After differentiating between the legal status of marijuana and hemp, both of which are botanically “cannabis sativa l”, the DEA states:

“[C]annabinoids extracted from the cannabis plant that have a 9-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.” 

Additionally, the DEA states the following in a footnote:

“The Agricultural Improvement Act of 2018 (AIA), Pub. L. 115-334, § 12619, amended the CSA to remove “tetrahydrocannabinols in hemp” from control. See 21 U.S.C. § 812, Schedule I(c)(17). As noted, however, “hemp” is defined to “mean 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 concentration of not more than 0.3 percent on a dry weight basis.” 7 U.S.C. 1639o. Thus, only tetrahydrocannabinol in or derived from the cannabis plant—not synthetic tetrahydrocannabinol—is subject to being excluded from control as a “tetrahydrocannabinol[] in hemp.” (emphasis in the original)

With respect to what is meant by the term “synthetic THC”, which is controlled, the DEA clarifies that it is D8 “produced from non-cannabis materials.” In other words, the DEA confirms that “synthetic THC” means THC produced from materials other than hemp, a lawful form of cannabis.

Here is a copy of the letter:

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It seems that while the debate over D8’s legal status has been raging during the past several months the DEA has quietly but openly been telling us that D8 from hemp is not a controlled substance. Although this does not change the legal status of D8 in states that have banned or restricted it, we are glad to have this issue resolved at the federal level by the DEA itself. 

November 2, 2021

Rod Kight is an international hemp lawyer. He represents businesses throughout the hemp industry. Additionally, Rod speaks at cannabis conferences, drafts and presents 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.