If there were any lingering questions about the Drug Enforcement Administration’s (DEA) position on the scheduling status of delta-8 THC, an attorney recently dug up an email from a top official that makes it perfectly clear: when synthesized from legal CBD, the agency considers delta-8 THC to be a prohibited controlled substance.
The market for delta-8 products has expanded rapidly in recent years following the federal legalization of hemp and its naturally extracted derivatives like CBD. The intoxicating cannabinoid is also at the center of several lawsuits challenging state policies that have banned its sale.
Attorney Shane Pennington said in post on his Substack “On Drugs” on Friday that he was reviewing those lawsuits when he came across a 2021 letter from DEA Drug & Chemical Evaluation Section Chief Terrence Boos that clarified the agency’s interpretation of existing statute.
“Arriving at delta-8-THC by a chemical reaction starting from CBD makes the delta-8-THC synthetic and therefore, not exempted by the [Agriculture Improvement Act],” Boos wrote, referring to the 2018 Farm Bill, which federally legalized hemp. “Any quantity of delta-8-THC obtained by chemical means is a controlled substance.”
This isn’t necessarily new information, though it’s explained in plain language that could help clear up any remaining confusion about what is permitted and not permitted in the eyes of DEA.
At the agency’s 2023 Supply Chain Conference in May, Boos similarly explained that synthetic cannabinoids are banned, and he said that DEA is in the process of developing a final rule to formally clarify that policy, at the recommendation of the U.S. Department of Health and Human Services (HHS).
Boos also told a lawyer in February that the minor cannabinoids delta-8 THC-0 and delta-9 THC-O are prohibited because they can only be synthetically produced.
It should be noted that trace amounts of delta-8 THC can naturally occur in cannabis, and so the cannabinoid would be legal if it’s simply extracted from the plant. DEA confirmed as much in 2021. But products containing delta-8 THC that are being marketed typically come from a synthetic process.
Pennington said that he’s not entirely convinced that Boos is accurately interpreting the statute, as there are outstanding questions about how the words “derivative” and “extract” are defined in the Farm Bill, which could conflict with the agency’s stance.
In a follow-up Substack post for subscribers that was published on Sunday, Pennington and attorney Matthew Zorn expanded on that argument, explaining how hemp was legalized by excluding it from the definition of marijuana and THC (i.e. synthetic THC) under the Controlled Substances Act (CSA) and how that arguably means that Congress’s intent was to allow semi-synthetic hemp derivatives like delta-8 THC.
Also, in banning various drugs in the past, DEA has historically used statutory language that broadly prohibits derivatives and extracts. That same all-encompassing language is used in the Farm Bill to exclude hemp and its derivatives from the CSA, the attorneys pointed out, which they say is another crack in DEA’s logic on delta-8 THC.
“Treating hemp-derived delta-8 in a manner inconsistent from how it has treated other substances in the past without explanation is classic arbitrary and capricious agency action,” they wrote.
Bolstering their point, a federal appeals court ruled last year that the way that existing statute is written makes delta-8 THC exempt from control, as the law is “silent” on the minor cannabinoid while clearly legalizing hemp extracts and derivatives.
Regardless, Pennington and Zorn have emphasized that it’s important to understand DEA’s perspective because, unless it’s otherwise addressed by the courts or Congress, “Boos’s views are authoritative and likely to get some level of deference from a court.”
Despite the DEA official’s consistent remarks about delta-8 THC, there’s still a significant market for the products. Some states have moved to ban them, but as far as a federal enforcement response is concerned, the Food and Drug Administration (FDA) has simply sent warning letters to select companies that the agency identified as particularly problematic.
DEA separately announced in 2020 that it had removed the prescription CBD medication Epidiolex from Schedule V of the CSA, fully descheduling the cannabis medication.
Meanwhile, DEA Administrator Anne Milgram said at a House Judiciary Committee hearing this month that she will be keeping an open mind when the agency receives a scientific assessment and scheduling recommendation on marijuana from HHS as part of an administrative review that President Joe Biden directed last year.
She also said that the president had sent a “letter” to the attorney general and HHS secretary to initiate that process. But when an attorney filed a FOIA request with HHS for that letter, the department said it had “no records” of it. DEA referred Marijuana Moment’s question about the letter to the White House, which has not yet responded to a request for clarification.
Photo courtesy of Philip Steffan.