In an email response sent to Rod Kight of Kight Law Office PC on Feb. 13, the Drug Enforcement Administration (DEA) stated that because delta-9-THCO and delta-8-THCO are synthetic and are not found naturally in cannabis, they do not count as hemp, and are therefore controlled substances.

Kight’s letter was originally sent in August 2022 (and a follow-up email sent last week on Feb. 7) with a request for the status of THC acetate ester (THCO) under the Controlled Substances Act (CSA).

Terrence L. Boos, Chief Drug & Chemical Evaluation Section Diversion Control Division penned the response, and clarified the agency’s stance on delta products. “The only substances of which the Drug Enforcement Administration (DEA) is aware of the THC acetate ester are delta-9-THCO (delta-9-THC acetate ester) and delta-8-THCO (delta-8-THC acetate ester),” Boos said. “The Drug Enforcement Administration (DEA) reviewed the CSA and its implementing regulations with regard to the control status of these substances.”

Boos explained that the CSA classifies “tetrahydrocannabinols,” or THC, as “naturally contained in a plant of the genus Cannabis (cannabis plant), as well as synthetic equivalents of the substances contained in the cannabis plant and/or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity to those substances contained in the plant.”

Because of this definition, neither delta-9-THCO or delta-8-THCO are considered to be hemp by the DEA. “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,” wrote Boos.

He added that delta-9-THCO and delta-8-THCO have “similar chemical structures and pharmacological activities to those contained in the cannabis plant,” and thus meet the definition of “tetrahydrocannabinols,” which the agency classifies in Schedule I. He also included the molecular structure of delta-9-THCO and delta-8-THCO for reference at the end of the letter.

In a written statement from Michelle Bodian, partner at Vicente Sederberg, Bodian explained what this news could mean for the industry. “While the latest statement from DEA does not clarify the legal status of all novel hemp derived cannabinoids, it does clarify that DEA believes Delta-9THCO and Delta-8THCO are controlled substances,” said Michelle Bodian, Partner at Vicente Sederberg. “Hopefully, there is Congressional action soon to address the legality of all hemp derived cannabinoids, so the industry is not left with a patchwork of law, regulation, policy and now, letter statements.”

While the government has been silent on a definitive course of action in regard to regulating delta products, state legislators have been left to take action on their own.

Delta-8 products were banned in New York in May 2021. Ohio created new rules to govern delta-8 products in June 2021, including production and sales. A new law introduced in Michigan in July 2021 also created regulations that limited the sale of delta-8 products to only cannabis businesses that were licensed by the Michigan Marijuana Regulatory Agency. Later in November 2021, a Texas judge issued a temporary injunction that removed delta-8 from the state’s list of Schedule I substances.

In May 2022, governmental agencies such as the Food and Drug Administration (FDA) sent out warning letters to businesses selling delta-8 products. “The FDA is very concerned about the growing popularity of delta-8 THC products being sold online and in stores nationwide,” said FDA Principal Deputy Commissioner Janet Woodcock. “These products often include claims that they treat or alleviate the side effects related to a wide variety of diseases or medical disorders, such as cancer, multiple sclerosis, chronic pain, nausea, and anxiety.”

In the most recent string of delta-related news, Connecticut Attorney General William Tong recently announced that his office was suing five retailers selling cannabis without a license, specifically in relation to delta-8 THC. “Cannabis products in Connecticut cannot be sold by unlicensed retailers and must meet rigorous testing and packaging requirements. Period,” said Tong in statement. “Any unlicensed Connecticut retailer selling delta-8 THC products that purport to contain high levels of THC is breaking the law and may be subject to both criminal and civil penalties.”

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