Bradley: Real or Not Real? The Difference Between Legal Delta-8/Delta-10 THC and Illegal Delta-8/Delta-10 THCO

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Last week, we wrote about the Drug Enforcement Administration’s (DEA) February 13, 2023 response letter stating that delta-8 THCO and delta-9 THCO – two forms of THC acetate ester (THCO) – are illegal controlled substances under federal law. The DEA’s decision centered on THCO’s “synthetic” nature. The DEA explained that “[d]elta-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 [2018 Farm Bill’s] definition of hemp.”

Delta-8 THCO and delta-9 THCO are far less common than the psychoactive cannabinoids delta-8 THC and delta-10 THC, which are contained in products sold in dozens of states. But delta-8 THC and delta-10 THC are both created in a lab, so aren’t they also “synthetic” and therefore illegal under the DEA’s decision?

The short answer is “no.” And the reason why is that both delta-8 THC and delta-10 THC are naturally present in cannabis plants, even if only in trace amounts. Because it’s far too costly to process entire cannabis plants to extract these nominal amounts of delta-8 and delta-10 THC, hemp processors usually extract cannabidiol (CBD) from the plant and then convert the extracted CBD into delta-8 or delta-10 THC.

This means delta-8 and delta-10 are both “lab created,” but that doesn’t make them “synthetic.” Because those cannabinoids “occur naturally in the cannabis plant,” their lab-created versions still qualify as federally legal “hemp” under the 2018 Farm Bill so long as the starting point for the process was a hemp plant. As the DEA explained in a September 2021 letter to the Alabama Board of Pharmacy, only THC “in or derived from the cannabis plant” can fall outside the purview of the federal Controlled Substances Act. “[S]ynthetic” THC – like delta-8 and delta-9 THCO – cannot.

In short, the DEA’s February 13 response letter did not alter the status quo for delta-8 and delta-10 THC at the federal level, where naturally derived versions of these cannabinoids remain legal. But as we recently discussed in another post, there will be a new Farm Bill in 2023, and whether and how to regulate hemp-derived, psychoactive cannabinoids at the federal level is one of the most important policy choices Congress faces with respect to hemp.

Stay tuned for updates.


Real or Not Real? The Difference Between Legal Delta-8/Delta-10 THC and Illegal Delta-8/Delta-10 THCO

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