The Drug Enforcement Administration (DEA) is considering adding delta-8 THC, a cannabinoid derived from the cannabis plant, to the list of controlled substances under the Controlled Substances Act. Delta-8 THC is found in both hemp and marijuana plants and is considered a controlled substance when obtained synthetically. The DEA’s move to regulate delta-8 THC comes as it seeks to tighten control over illegal controlled substances, including hemp-derived synthetic cannabinoids that occur naturally or are obtained synthetically. Under the Controlled Substances Act, the DEA has the authority to regulate all cannabis constituents, whether they are naturally produced derivatives or synthetically derived tetrahydrocannabinols.
The chemical evaluation section of the DEA’s drug control status review is responsible for determining the control status of a substance. The potential reclassification of delta-8 THC could have significant ramifications for the cannabis industry, particularly for hemp-derived products such as dietary supplements containing hemp derivatives and synthetic THC like delta-8. Some experts argue that the DEA should instead deschedule synthetic CBD and other synthetically derived cannabinoids that do not occur naturally in the plant Cannabis sativa, given their legal status under federal law and the Health and Human Services’ determination that they are not considered controlled substances.
Drug Enforcement Administration (DEA)
The Drug Enforcement Administration (DEA) is a federal law enforcement agency within the United States Department of Justice tasked with combating drug trafficking and distribution in the country. The agency is responsible for enforcing the Controlled Substances Act, which regulates the manufacture, distribution, and dispensing of drugs in the United States. The DEA investigates and prosecutes drug-related crimes, manages drug intelligence programs, and works with other law enforcement agencies to disrupt drug trafficking organizations. The agency is also responsible for regulating the legal production of controlled substances for medical and scientific purposes.
The Drug Enforcement Administration (DEA) announced a proposed rule in August 2020 that seeks to regulate delta-8 THC, a cannabinoid derived from the cannabis plant, as a controlled substance under the Controlled Substances Act. Delta-8 THC is found in both hemp and marijuana plants and is considered a controlled substance when obtained synthetically.
Why is the DEA Regulating Delta-8 THC?
Under the Controlled Substances Act, the DEA has the authority to regulate all cannabis constituents, whether they are naturally produced derivatives or synthetically derived tetrahydrocannabinols. The DEA’s proposed rule seeks to clarify that delta-8 THC, whether naturally expressed or laboratory-created, falls under the definition of “tetrahydrocannabinols” and is therefore a Schedule I controlled substance.
The proposed rule also seeks to clarify that any synthetically derived cannabinoids, regardless of whether they occur naturally in the plant Cannabis sativa, are considered illegal controlled substances. This includes hemp-derived synthetic cannabinoids that occur naturally or are obtained synthetically, such as THC acetate ester and other forms of synthetic THC.
The DEA’s Position on Delta-8 THC
In a letter to the Florida Department of Agriculture and Consumer Services in September 2020, a DEA representative stated that “all synthetically derived tetrahydrocannabinols remain schedule I controlled substances,” regardless of their origin. The letter also stated that while delta-8 THC may be naturally occurring in some cannabis strains, it is typically produced through a synthetic step and therefore falls under the statutory definition of a controlled substance.
Legal Considerations
The DEA’s move to regulate delta-8 THC has sparked controversy in the cannabis industry, with some arguing that the DEA is overstepping its bounds by seeking to regulate a compound that is federally legalized under the 2018 Farm Bill. Attorney Rod Kight, who specializes in cannabis law, has argued that the DEA’s position on delta-8 THC is inconsistent with the definition of hemp under federal law and the Health and Human Services’ determination that non-intoxicating cannabinoids like CBD are not considered controlled substances.
The regulation of synthetic cannabinoids like CBD and delta-8 THC is a complex legal issue that has been the subject of much debate in recent years. At present, these substances are not specifically regulated under federal law, although they may be subject to existing regulations governing controlled substances if they are derived from cannabis plants.
CBD, or cannabidiol, is a non-intoxicating cannabinoid that is derived from hemp, which is legal under federal law if it contains less than 0.3% delta-9 THC on a dry weight basis. However, the legal status of CBD is somewhat unclear, with some arguing that it is a controlled substance under the Controlled Substances Act and others arguing that it is exempt from regulation under the 2018 Farm Bill.
Delta-8 THC, a psychoactive cannabinoid found in both hemp and marijuana plants, is also currently unregulated under federal law. However, the Drug Enforcement Administration (DEA) recently announced plans to regulate delta-8 THC as a controlled substance under the Controlled Substances Act.
The regulatory landscape surrounding synthetic cannabinoids like CBD and delta-8 THC is likely to evolve in the coming years as federal agencies and lawmakers seek to address the growing market for these substances. In the meantime, it is important for consumers and businesses to understand the legal considerations and potential risks associated with the use and sale of these substances.
Scientific Considerations
Some experts have also questioned the scientific basis for the DEA’s move to regulate delta-8 THC, arguing that it is not a highly psychoactive compound and does not produce the same intoxicating effects as delta-9 THC. They also point out that delta-8 THC can be naturally expressed in some cannabis strains and may not always be produced through a laboratory synthesis.
The DEA’s move to regulate delta-8 THC as a controlled substance under the Controlled Substances Act could have significant ramifications for the cannabis industry and those who use hemp-derived products containing delta-8 THC. While the legal and scientific considerations surrounding this issue are complex, it is clear that the DEA is taking a hardline stance on the regulation of cannabinoids and other cannabis constituents based on their chemical structures and pharmacological activities. As this issue continues to unfold at the federal level, it will be important to monitor the DEA’s position and any potential legal challenges to its proposed rule.