On February 13, 2023, the U.S. Drug Enforcement Administration (DEA) published a letter in which it opined that two acetate compounds chemically derived from cannabis, delta-8-THCO and delta-9-THCO, are Schedule I substances under the federal Controlled Substances Act (CSA), even if they are derived from hemp, which is federally legal. The DEA’s letter came in response to an inquiry from an attorney who represents the Hemp Industries Association.
Dr. Terrence L. Boos, Chief of the DEA’s Drug & Chemical Evaluation Section Diversion Control Division wrote, “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.” Dr. Boos wrote that the CSA classifies THC under Schedule I, and THC (tetrahydrocannabinols) means those “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.” (emphasis added).
It’s important to note that the compounds addressed in the DEA letter are different from delta-9-THC, the psychoactive chemical found naturally in cannabis that causes a high, and delta-8-THC, a compound that can be synthesized from CBD derived from hemp.
Given the DEA’s position, retailers selling products that contain Delta-9-THCO or delta-8-THCO must hold all requisite licenses to sell cannabis products in jurisdictions where cannabis has been legalized, either for medicinal or recreational purposes. For retailers who are selling delta-9-THCO or delta-8-THCO products in states where cannabis has not been legalized, such retailers would likely be in violation of the CSA, according to the DEA’s position.