THCO is a Schedule 1 Controlled Substance Says DEA

DEA says THCO is a schedule 1 controlled substance.

I have been concerned about the proliferation of THC acetate ester (THCO) for a while. It has always been my view that THCO is a controlled substance under federal law. Although it can be made from cannabinoids from hemp, THCO is not naturally expressed by the hemp plant. It is a laboratory creation that does not occur in nature, at least not from the hemp plant.

I have had many consultations in which people equate THCO with delta-8 THC (D8) based on the fact that most of the D8 on the market is made chemically from another cannabinoid. During these conversations, people say that D8 is a “derivative” of hemp and it is considered lawful “hemp” under the 2018 Farm Bill. By extension, they state that since THCO is also a hemp derivative it meets the definition of hemp, too. I always inform them that they are wrong. D8 and THCO are different in a very important way, namely that D8 is naturally produced by the hemp plant; THCO is not. 

To be clear, as I have consistently argued, and which both the DEA and the 9th Circuit Court of Appeals have confirmed, D8 falls within the definition of “hemp” because it is a “derivative” as set forth in the 2018 Farm Bill. For this reason, many people assume that THCO also meets the definition of a hemp derivative since it is typically created from a starter cannabinoid. This is not correct. D8 is distinguishable from THCO because the hemp plant naturally produces D8; however, it does not produce THCO. From this perspective, and unlike D8, THCO is properly seen as synthetic THC, not “hemp”. For this reason, I have consistently advised clients not to create or distribute THCO. On a personal level, and based on a research letter published earlier this year in the Journal of Medical Toxicology, I routinely advise personal friends not to consume THCO due to the potentially serious medical consequences of vaping it.

Due to my concerns, I asked the Drug Enforcement Administration (DEA) for its opinion on THCO. In its response letter, below, it states:

Delta-9-THCO and delta-8-THCO do not occur naturally in the cannabis plant and can only be obtained synthetically, and therefore do not fall under the definition of hemp…. Thus, delta-9-THCO and delta-8-THCO meet the definition of “tetrahydrocannabinols,” and they (and products containing delta-9-THCO and delta-8-THCO) are controlled in schedule I by 21 U.S.C. § 812(c) Schedule I, and 21 CFR § 1308.11(d).

Although I do not always agree with the DEA’s view on cannabis matters, I agree with this opinion and, frankly, am not surprised. This is what I have been saying for a while. 

Here is the letter:

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Here is my inquiry to the DEA about THCO:

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February 13, 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

32 comments on “THCO is a Schedule 1 Controlled Substance Says DEAAdd yours →

  1. Thank You for sharing your knowledge and clarifying the difference in each, as education is very important

  2. The DEA says it is a controlled substance, not yet it’s not. It will still take time before it is regulated. There is no bill proving their information. It is NOT REGULATED!

        1. John- Thank you for staying engaged. That being said, I must correct you. As discussed in the letter that the DEA sent to me, THCO is listed on the Controlled Substances Act and is regulated. Regardless of whether you or I or anyone else thinks this is a good thing or a bad thing it is the current state of the law. -Rod

    1. The controlled substances act states synthetic derivatives. So if you see the point they make that you cannot get THC-O from hemp naturally, then its not protected in the farm bill and would fall under the CSA.

    1. Thank you for taking the time to post a comment, but I do not understand what you are trying to say. I was not (am not) wrong about THCa, which is a different subject altogether. This blog article is about a letter I received from the DEA regarding THCO, not THCa.

      1. Vivimu suddenly shut down their THCa sales without explanation, when they previously stated recently it’s their best selling product line by far. No company would do that unless threatened by law enforcement.

        But mainly, you only asked the DEA what they think THC-O should be scheduled. They don’t have the power to change the controlled substances act whenever they feel like it. You can tell by the wording of the letter & the fact THC-O is not on the current list of controlled substances.

  3. I got this article from one of my reps today. I am the GM for a small smoke shop. We carry some of these products. I am wondering if I need to pull these things now, or can I wait to sell out of them? As a small shop in a small town this could really hurt us. I appreciate the input.

  4. Thanks for the heads up! This is probably best for the hemp industry. I have already seen some websites misquote you and state that a letter written to you from the DEA states the Delta-8 is illegal as well. Now curiously will there be a grace period for stores to offload THC-O?

    1. It appears the point here is that THC-0 has ALWAYS been illegal. So just because a letter sent to some lawyer from the dea that states their opinion is that it is illegal doesn’t officialize it’s legality.

      They tried this. With Delta 8 and it went to court, this too will have too.
      Their argument is that it is 100% synthetic and thus illegal.

      Let’s see the courts handle this. Hemp and any of its seeds or stems or flowers, synthesized , isomers etc. are legal.

      I believe the 2018 help act still supersedes this opinion that THC-O is illegal because it is synthetic, when in fact it has been synthesized from a hemp derived cannabinoid (delta 8 or delta 9).

      For now until this opinion of the DEA is confirmed in court, it is nothing more than an opinion of a government employee that works for the citizens of this awesome country.

      1. David- Although there has been litigation at the state level regarding delta-8 THC (I am part of the legal team that obtained an injunction in Texas), there has not been any litigation with the DEA regarding delta-8 THC. The argument you make- that a synthesized hemp derivative is lawful- is the argument I created regarding delta-8 THC. Although it protects the legal status of hemp derivatives that are synthesized from hemp compounds, those compounds must be ones that the plant naturally produces. This only makes sense. Otherwise any manner of synthetic compounds that do not occur in nature, but which could be made with a starter compound such as CBD, would be classified as “hemp”. The statute simply does not support that position. -Rod

  5. I think this issue of legality is much cleared than when we all were trying to prove that D8 and made from hemp Was legal.

    One thing that annoys the crap out of me, is the Hemp Roundtable puts out there that, Congress did not intend for any type of intoxicating products to become available with the 2018 Farm Bill.

    Make no mistake about it. The only reason we see all this push back and trying to ban D8 is because it works. It has exploded in popularity with out a big media campaign. That only happens when something works so well for people it changed their life.

    D8 has done exactly that. At whose expense? Who else? Big pharma and the green industry. They are pulling every string they can get and bribing/donating to every politician under the Sun to make laws to abolish D8.

    Ten out of the 11 major Green industry companies lost money last year! Why, because people found relief with D8. They like that it helps them but does not take over their life in a negative drug way.

    Big pharma is losing money by the handful. CBD not only helps people. It actually ends up allowing many to lower their current big pharma drug levels to lower dosages. When you start taking away their lifelong customers, big pharma comes out punching hard.

    I can not personally believe the level of corruption I see from the green industry and big pharma trying to get laws passed behind the scenes in so many states.

    Oregon, California and Nevada have not even attempted to make it look like they are not absolutely biased in their attempts to ban D8 once it took off. It cuts into their green industry profits big time. I have customers every day tell me they were shocked D8 helped them so much. And now they prefer it to the other stuff that is legal in some states.

    For the people with no legal options in their state. D8 had become a miracle for them. The stories we hear from customers about the relief they got for lifelong diseases, pain and sleep issues is impressive to say the least.

    Even if the results people are getting that help them so much from D8 are only placebo effects, you are not going to convince these people to give up D8 with out a fight. That is how it should be anyways.

    I tell my customers daily, do not ignore these attempts they are doing. They will get it banned if you do not fight back. I hope everyone is talking to their customers to pay attention and fight back. It one day we are going to wake up and find a lot of customers being in pain, not sleeping, having anxiety, super stressed out and we no longer have anything to offer to help them.

    They do not care about the average consumer. They only care about their profits. They would rather have you on opioids daily or smoking pot that lines their pockets instead of having something like D8. The fact that is helps people tremendously had absolutely no impact on their actions. If you get stuck in pain because you can not longer get D8. They do not care. They do not care about the quality of your life.

    This is the top thing we hear from customers daily. D8 has improved their quality of life so much.

    Thanks for you hard work. I actually respect your work a little bit more than the Hemp Roundtable. They are not on the small smoke shop owners sides. They have now been bought and are encouraging laws that help big pharma and the green industry over small smoke shops.

    They say “The U.S. Hemp Roundtable believes all products containing hemp-derived cannabinoids should be regulated for consumer safety, and those that are intoxicating should be limited to adult-use and kept out of the hands of minors.”

    Who are they joking?

    Smoke shops are the most regulated industry out there. No one under 21 is even allowed in out smoke shops. If you what real control on the market. We have real consequences if we sell to minors. As in industry we care about doing the right thing. We do not need to sell to minors. We are here for adults who are educated and can legally decide what they wish to use. Hemp/CBD products are absolutely as safe if not safer than a good chunk of the big pharma meds out there.

    But wait, if we don’t start a scare campaign how will we ever get the public to believe us and ban it? Does Reeder Madness ring a bell?

    Sorry for my rambling. Thank you for your hard work and keeping the public updated with your blog. You happen to be one of the few emails I never delete on my daily email purges and go read pretty quickly to see what is new.

    Our industry has become more complicated but on the other hand, we have changed and grown so much. It is exciting to be working to bring these new products to the market and educate customers about them. Nothing feels better than when customers come back to you, so thankful for introducing them to these products because they have made such a good difference in their lives! We have been extremely blessed to have developed life long friendships with customers thru our business, when you help impact a person life by giving them something to help them sleep when they struggle so much with insomnia, or something that helps their pain when nothing else did, you get new friends in the process sometimes.

    1. Thank you for sharing your thoughts, Amy, and for your passion about the hemp industry. I share many of your concerns, and worry that small businesses and consumers will suffer due to greed by Big Corporate Marijuana and its massive lobbying efforts. I would guess that no one who thought about cannabis reform a couple of decades ago envisioned a world where a small handful of multinational companies- the “Wal Marts of Weed”- controlled the entire industry (and at a loss, as you point out.) What most reform advocates likely envisioned was a world where small cannabis businesses, from growers to retail shops, could thrive- the Main Street version of reform, rather than Wall Street. The “hemp” version of cannabis reform is showing that this “Main Street” reform can actually happen. Unfortunately, the Wall Street players are intent on pushing hemp aside. Please keep up your good work and education to your customers and colleagues. I still believe in a bright future for cannabis. -Rod

  6. Thank you very much for sharing this letter and clarifying your professional opinion on THC-O. It’s greatly appreciated! I will certainly retain this as an official resource on the subject matter.

  7. So all this hoopla is about a response to letter written to you? Because I can not find anything in the public register(not even a proposed rule comment period).

  8. All these dispensaries that price gouge you, charge you convenience fees and ATM fees for wanting to pay cashless… They’re feeling the hurt from people going to cheaper and “legal” cannabinoids. So now they are reaching out to their buddies in the DEA for help in shutting down their competition. It’s really really sad

  9. All this is pointless. When the 2025 Farm Bill is enacted, all hemp derived products that have psychoactive properties will be classified as illegal substances. From Congress point of view, this was a 5 year loophole in legalizing hemp-derived psychoactive products. What the Hemp industry is overlooking and what is important is that the FDA gets out of the way in terms of refusing to consider or review or regulate the safety of CBD and other minor cannabinoids. Every major brand and supermarket will not take a chance on including CBD as a nutritional supplement. Until this happens, CBD will remain a small segment. Additionally, the Farm Bill must increase the arbitrary 0.3% limit of THC. It should be at least 1% at the minimum. 1% THC has no psychoactive impact and by dramatically increasing the cost of production.

  10. I was just going to tell you, THC is scheduled narcotic nonetheless I believe it’s a scheduled 2 narcotic in addition after reading the reference for THCO 8 I realized that’s actually the common household reefer plant it’s actually a hybrid cross bred between cannabis and tobacco as a California resident I don’t believe in recreational marijuana and I’d also like to add that hemp and marijuana are mutually exclusive crops and although criminal derilects and pirates have intentionally heterogeneously interbred the hemp crop intentionally with marijuana to hide the evidential fact of narcosis and illicit drug distribution I’d like to be candidly clear hemp is not marijuana and marijuana cannot produce CBD only strains when we said medicinal cannabis we intended to write hemp only products and not Delta Trera hydro canibanol we mean cannibanoids only see canibanol is a type of polyurethane diesel combustible found in most weed plants and it’s an acid bases organic plant based fatty acid but the derivative substance for THC and CBD are not mutually agreeable it’s like equivocation coffee for tea for their caffeine ingredients it’s simply not the same substance. And although recreational cannabis is legal recreational marijuana is not.

  11. Hello Mr. Kight. I had a question regarding the sell of THC-O that I haven’t been able to find an answer to. Our boss first didn’t want to tell us about the situation even though we all knew and now we are being told that we have a grace period; however, I’ve looked and looked and I see nothing about a grace period for selling. I am concerned of getting in trouble with law enforcement. Do you have any information regarding this?

  12. Hello… I just came across your blog. The police came to our vape shop yesterday telling us that delta 8 is illegal now and we are suppose to stop selling it. They are confused about it being THC-O. I’m printing info to take to them but like the buy above is there a grace period on selling the thco could u possibly email me also about that? That is for your time. Janna

    1. Thanks for commenting, Janna. I’m sorry to hear about law enforcement showing up at your shop. To be clear, the DEA specifically stated that THCO is a controlled drug, not delta-8 THC. (In fact, the DEA has specifically stated that delta-8 THC is not controlled.) I recommend viewing these articles:

      The DEA did not provide a “grace period” for THCO. Please feel free to contact me directly if you want to schedule a consultation.


  13. How do you see the relationship between chemically made Delta-8 and California’s Health & Safety Code section 111920(f). If most of the Delta-8 products are synthetically made and would be excluded from the definition of Industrial Hemp in California, how can the consumer tell the difference between naturally hemp derived Delta-8 from synthetically created Delta-8?

    1. Anthony- Thanks for your comments and questions. To be clear, your comment does not address the DEA or THCO (the subject of this article), but rather delta-8 THC and California’s Health and Safety Code, specifically section 111920(f), which states: “(f) “Industrial hemp” has the same meaning as in Section 11018.5. “Industrial hemp” does not include cannabinoids produced through chemical synthesis.” I have an interpretation of this provision, but I do not provide legal advice on my blog. With respect to how consumers can tell the difference between D8 that is extracted and D8 that is made chemically, the short answer is that they cannot. It is the same molecule. From a practical standpoint, most of the D8 on the market (and possibly all of it) is the result of a chemical conversion since D8 is not naturally expressed in the cannabis plant in sufficient concentrations to make it economically viable to extract it. This is not necessarily a bad thing. For instance, most of the caffeine in non-coffee drinks is “synthetic”. As with D8, it is the same molecule. The safety issue is how it is produced. As with anything, it can be produced safely or not. -Rod

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