Is the DEA About to Issue a Rule About Delta-8 THC and Other Hemp Derivatives?

Is the DEA About to Issue a Rule About Delta-8 THC and Other Hemp Derivatives?

On May 4, 2023, during its annual Supply Chain Conference, the Drug Enforcement Administration (DEA) announced that it is “in the process of modifying [its regulations]” on cannabis constituents based on recommendations from the U.S. Department of Health and Human Services (HHS). The announcement came during a presentation on “Emerging Trends” by Terrance Boos, chief of the DEA’s Drug and Chemical Evaluation Section. In addition to a discussion of fentanyl and new synthetic opioids, Dr. Boos addressed “synthetic cannabinoids”, which according to Dr. Boos includes delta-8 tetrahydrocannabinol (THC) derived from CBD in addition to “Spice” and “Bath Salts”. Dr. Boos directly addressed delta-8 THC and devoted several slides of his presentation to it and “synthetic” cannabinoids in general:

If the product contains any quantity of synthetic tetrahydrocannabinol, it is controlled under schedule I of the CSA, unless it is specifically excepted or listed in another schedule.

As reported by Marijuana Moment, during his presentation Dr. Boos stated that converting cannabidiol (CBD) to delta-8 THC, “is not allowed” and that “synthetic tetrahydrocannabinols were not exempted” from the Controlled Substances Act (CSA) even though hemp and its naturally produced derivatives were legalized. “That act of taking that substance in any synthetic step now brings it back under the CSA.” Additionally, based on the slide show presentation, the DEA also intends to deschedule synthetic CBD. 

This all raises several questions.

First, is synthetic CBD currently scheduled? No, “synthetic CBD” is not scheduled. It is not separately listed as a controlled substance on the May 2023 edition of the DEA’s list of controlled substances. Additionally, by definition “synthetic” CBD does not come from the marijuana plant. (“Marihuana” is controlled and it includes “all parts” of the plant.) Finally, CBD is not the same molecule as THC, which is a scheduled substance. So, we do not know why the DEA is discussing “descheduling” synthetic CBD when it is not scheduled to begin with. 

Second, hasn’t the DEA already stated that delta-8 THC from hemp and, in fact, all cannabinoids from hemp, are not controlled provided their delta-9 THC concentrations do not exceed 0.3%? Yes, the DEA has stated on multiple occasions that delta-8 THC from hemp is not controlled. Notably, during a a video webinar called a “Town Hall with USDA and DEA” conducted by the Florida Department of Agriculture and Consumer Services on June 24, 2021, the DEA representative, Sean Mitchell, stated: “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.” The issue is not actually delta-8 THC, but rather delta-8 THC that is produced via a chemical conversion from CBD, ie, what is being called “synthetic” delta-8 THC. To this point, Dr. Boos’ slide presentation states the following: 

Whether a cannabinoid product that has been synthetically produced from non-cannabis materials is controlled depends on whether that product contains ‘any quantity’ of a synthetically produced tetrahydrocannabinol. This includes cannabinoids products that are chemically identical to cannabinoids that naturally occur in the cannabis plant but that have been manufactured synthetically rather than by extraction from the plant.(emphasis added)

Notably, the DEA does not offer any statutory support for this last sentence. It completely ignores the fact that the definition of “hemp” in the 2018 Farm Bill includes the term “derivatives” among the things that qualify as lawful “hemp”. As attorney Philip Snow and I discussed in detail in our June 11, 2021 legal opinion letter regarding delta-8 THC for the Hemp Industries Association (HIA), a “derivative” is, by definition, a synthetic compound. 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.” In other words, delta-8 THC that is derived from hemp (ie, is “synthesized” from hemp) is exempt from control by the DEA. And, just to complete the circle, under the 2018 Farm Bill, CBD from hemp is itself “hemp”. This last point is a little counter-intuitive, but the statute is clear that “hemp” includes not only the plant itself but also its cannabinoids, isomers, extracts, derivatives, etc. In other words, CBD from hemp is lawful “hemp”, and a hemp derivative, such as delta-8 THC made from CBD, is also lawful “hemp”. The DEA cannot sidestep the broad exception that Congress carved out for hemp by simply ignoring one of the words in the definition. 

Finally, the DEA’s statements about hemp-derived delta-8 THC also belie the first sentence in the statement above in the slide presentation and in other places, namely, that synthetic THC is the product of “non-cannabis materials”. CBD and other cannabinoids are cannabis materials. So, even by the DEA’s own definition of “synthetic THC”, namely THC derived from non-cannabis materials, delta-8 THC from CBD does not qualify since CBD is a “cannabis material”.

Third, is the DEA about to schedule delta-8 THC and, if so, what can the hemp industry expect? Based on Dr. Boos’ presentation, it does appear that the DEA is poised to propose a rule that places delta-8 THC and other forms of THC that are produced from CBD and other hemp cannabinoids (ie, hemp derivatives) into schedule I. However, as my friends at Vicente recently noted, the rule is not likely to be imminent. Additionally, in its article Vicente notes that “there will be a public comment period and an opportunity for interested parties to request on-the-record hearings.” I agree with this assessment. This means that the hemp industry, already battling efforts by prohibitionists and Big Marijuana to sharply restrict its activities in a state by state ground war, must also be prepared to respond in a strong and unified voice to any proposed rules by the DEA that overstep its legal authority by attempting to interfere with lawful hemp. 

We will keep a close eye on this issue and intend to continue blogging and educating our clients about it as developments occur. If you have questions about how a DEA rule may impact your business, you can contact us to schedule a consultation. 

May 18, 2023

Rod Kight, Cannabis industry attorney

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


14 comments on “Is the DEA About to Issue a Rule About Delta-8 THC and Other Hemp Derivatives?Add yours →

  1. I believe that the dea and all the fellow three letter mafias are always trying to figure a way for them to implement there strong arm on the people.I believe it’s been in the works about how the dea and the war on drugs has failed horriblely and they still think in there minds that there doing good to the health and safety of the United States when all they have done is make the state of health and safety worse by implementing there force and mafia on to the American people who have already been showing that they want them to leave us alone and leave us be yes in the time it was created the people then where lied to and told other wise when it has been proven that the central intelligence agency has used drugs and the drug money that they allow which people they want to they will use the money to fund other wars but will say in there country that they believe that the war on drugs is working but when u ask any other people from any other countries they will say that American war on drugs is not working

  2. How can they compare CBD or Delta 8 products to salts or Spice? Salts and spice are chemically made lab compounds that are very dangerous. Now they want to compare industrial hemp to this? Another scare tac Ic. To put the Public into a frenzy. I am so sick of this Government making something legal, you build your businesses on it. You pay your blood money in taxes to the Government and then they just pull the carpet out. Do that not want small business to exists? They don’t care about anyone but their own greedy pockets.
    It makes me sick. I can’t wait to leave NY

    1. That Delta 8 should definitely be illegal. If anything, they should make it a Schedule 1, and then take Delta 9 (regular weed) and unschedule it and make it legal.

  3. How can they compare CBD or Delta 8 products to salts or Spice? Salts and spice are chemically made lab compounds that are very dangerous. Now they want to compare industrial hemp to this? Another scare tac Ic. To put the Public into a frenzy. I am so sick of this Government making something legal, you build your businesses on it. You pay your blood money in taxes to the Government and then they just pull the carpet out. Do that not want small business to exists? They don’t care about anyone but their own greedy pockets.
    It makes me sick. I can’t wait to leave NY.
    If NY would not make this all Government involved, like other States. We would be well on our way.
    They want to be the only ones making money.
    Delta 8 is not synthetic.
    It is Industrial hemp from which they get CBD.
    If that is so then they will soon Take CBD away after people have also built a business on that. It’s horrible. Keep tearing small Business down

  4. The federal government should just legalize weed. Especially if there worried about the national debt and social security and disability running out of money. And the federal government should make the rich and big corporations pay there fair share of taxes. Just like the middle class has to right.

  5. This absolutely infuriates me and it should enrage all citizens.

    Is there daily news reports about anyone doing any illegal activities while taking hemp products with D8, D10,CBD or any other cannabanoids?

    I can answer very quickly and easily!
    No, no you have not. And no you will not! American citizens are using hemp products to help them sleep better, ease pain, calm anxiety, deal with stress and other perfectly normal and legal reasons.

    We have an epidemic of Opioid overdose and fentanyl every where in the USA. Why the hell is the DEA not spending every second working on stopping real actual epidemics that are killing, I repeat KILLING people daily all over this country.

    We now have a new issue coming up all over the Country, Tranq, or Xylazine. The zombie skin eating newest drug taking hold of our country. There are new articles daily across the country about how bad this is getting. An article said this vet drug is believed to being mixed in a good chunk of many of the street drugs put there right now unbeknownst the most drug users.

    So people who think they are buying coke/cocaine or heroin are ending up getting addicted to Tranq by underhanded corrupt drug dealers. Many do not even realize what has happened to them for a while. The withdrawal from Tranq happens with in hours. Medical professionals say the skin eating part of this Drug Tranq is really causing severe medical trauma in these people. With many losing limbs, as the result.

    Our medical system is already overworked and overstrained by regular medical conditions, one of which was coronavirus the last couple years. The medical community alone deserves for the DEA to be putting every last brain cell they have in their agency on getting Tranq off the streets and finding ways to stop access to the veterinary drug that is being mixed into street drugs.

    That is a legal and very real issue. There should be much more prevention measures put in place to control this veterinary drug to begin with. How about the DEA start doing some advance homework to see if there are other veterinary drugs that can be used in a similar way to cut street drugs and cause any other new problems?

    But instead the DEA is trying to put its nose in hemp products and those products made from hemp for the average consumer to take after work or a long day to help them relax, or help them get better sleep, or that helps them relieve pain, ot that helps them calm their anxiety?

    Come on, please all citizens, we have to fight back on this corruption hard and severe! They are constantly trying to take away your rights. They are not looking out for your best interests. Money talks in this country way too often. We as citizens have to demand our voices be heard. Your politicians work for you, not big pharma, not big corporations, not for the government, not for the DEA or FDA!! Please do not forget this.

    I will be out there making a huge campaign to fight this if they continue this madness.

    Rod, I want to thank you for your concise reporting about these issues. This is very tricky and confusing subject that is hard for average consumers to make sense of. And your blog is of the upmost importance for average citizens like me to really make more sense of what is being said and done about this issue. I can not thank you enough for all that you do.

    If you are ever in Dallas Fort Worth area, I would love to meet you in person, and thank you by taking you to lunch or dinner. If you are ever near one of my Smokes N Edibles stores here, please stop by. We would love to say hi and offer any assistance we can to you. Make sure my employees give me a call to let me know you are up there. Cause I would come right over to meet you.

    I just can not believe with all the real life street drug issues that are plaguing our country every single day, literally new people are dying every day to Tranq and Opioid deaths on our city streets of America and instead of the DEA focusing all their attention and efforts on stopping those deaths they are trying to start criminalizing average citizens for taking hemp products to reduce pain, stress, anxiety or get some restful sleep. Every person in this country should be as outraged as I am about this.

  6. It’s too bad that they don’t actually understand that on a therapeutic level. Delta eight is much more therapeutic than most regular cannabis products that cause brain fog and lethargy… The problem is that they don’t regulate it and there’s many toxic products in the industry

  7. Even though it’s legal if it comes back positive for THC and a drug screen in the incident at work. I get suspended for 10 days till the results comes back showing it’s legal.

  8. Is there a constitutional right in tobacco? That would make it legal for everyone. Because Delta 8 comes back positive for THC which is legal under a work policy in a incident? If you come back positive at my work for instant you’re terminated. Very unbalanced justice

  9. The DEA honestly should legalize THC Across the board. I’m a nurse and I see addiction to pain medication EVERY SINGLE DAY. BUT do you know how many tell me they would switch to THC if it was legal! Several! THC is much safer than opiods and will cut down on overdoses. These are people’s lives. But the DEA doesn’t care about that. People are gonna find a way to get there hands on THC either way. Now as for delta 8 and delta 9 same thing. I person vape that at night bc its the only thing that helps me sleep at night bc NOTHING else helps my insomnia I’ve tried everything and at the highest doses. It has medical benefits. LEAVE IT ALONE AND KEEP IT LEGAL.

  10. Delta 8 needs to stay available for people 21 and over. There is no reason that is ethical or moral to take it away from people. This isn’t just a substance we’re talking about here, this is peoples lives. Maybe the DEA should instead, oh I don’t know, maybe taking traditional delta 9 thc off the controlled substances list? The government as a whole shouldn’t have a say in hemp or marijuana. These people do not care about us, and never have. The fact this is even being talked about lately is extremely reminiscent of 1970. What I am referring to is the paranoid idiot that came up with “reefer madness” and now the government is doing it all over again. These people don’t even have general knowledge of what they’re making laws about. This is sad. There is a very large amount of people that would be willing to fight this legally. This literally makes me want to become a lawyer to fight back against these people

  11. Who wants to partner up and sue the DEA AND every single state that bans this FULLY LEGAL hemp product? I certainly would fund this. You piece of crap government officials made this law and now you seek to make us criminals. Every single person that seeks to ban delta 8 deserves a jail cell

    1. The DEA claimed multiple times that delta 8 is not a controlled substance, therefore is not subject to the controlled substances act. Now you scumbags change your mind??? Justice will prevail and I hope these people have a rude awakening at the very least. We are not criminals, the government is. Every single day more and more people wake up to this fact. You seek to turn us into criminals for no good reason. Delta 8 is not the problem. You want kids to not be able to get their hands on it? Guess what, that’s not even that hard. The only people that sell to children are criminals to begin with. So why are you going after people that use this legally? #suethedea #abolishthedea
      As I said before, justice WILL prevail. YOU ARE THE CRIMINALS NOT US. And if somehow you pieces of crap manage to ban this substance? I will dedicate my interest to sueing every last one of you, and I will not stop trying. WE ARE NOT CRIMINALS

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