DEA States that Delta-9-THCO, Delta-8-THCO Are Not Hemp

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, a 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 a 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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Nevada Judge Orders Cannabis Removed From State’s List of Controlled Substances

A Clark County, Nevada judge ruled on Wednesday that the state pharmacy board does not have the authority to regulate cannabis and cannabis derivatives under state law and ordered the agency to remove marijuana from the state’s list of controlled substances. In the decision, Clark County District Court Judge Joe Hardy wrote that if the Nevada State Board of Pharmacy “designates a substance as a ‘controlled substance’ but the designation falls outside the authority delegated by the ​​Legislature, the designation is invalid.”

The ruling stems from a case brought against the pharmacy board by the American Civil Liberties Union of Nevada (ACLUNV) on behalf of Antoine Poole and the Cannabis Equity and Inclusion Community, an organization that assists entrepreneurs in launching businesses in Nevada’s legal cannabis industry. ACLUNV attorneys argued that the Schedule 1 classification of cannabis was unconstitutional because voters had legalized medical marijuana with the passage of a constitutional amendment in 1998. Last month, Hardy ruled that the Schedule 1 classification was unconstitutional.

“The constitutional right to use marijuana upon the advice of a physician does establish that marijuana has an accepted medical use and treatment in the United States,” Hardy ruled in a September decision cited by the Las Vegas Review-Journal.

The new ruling this week is focused on the pharmacy board’s authority to regulate cannabis. ACLUNV attorneys argued that despite the legalization of medical marijuana and the availability of regulated medicinal cannabis in Nevada since 2000, the pharmacy board continued to list cannabis similarly to illicit substances including heroin and methamphetamine. Lawyers for the pharmacy board countered that the listing was warranted because of the continued listing of marijuana as a Schedule 1 substance under federal law, an assertion rejected by the plaintiffs’ counsel.

“The notion that a state agency is able to engage in unlawful actions because it’s happening at the federal government – it’s just not the way it works,” Athar Haseebullah, the executive director of the American Civil Liberties Union of Nevada (ACLU), said on July 15 after the first hearing in the case. “They don’t work for the feds. We didn’t sue the DEA here. We sued the State Board of Pharmacy because this is a state action.”

In his ruling, Hardy wrote that “the Board exceeded its authority when it placed, or failed to remove marijuana, cannabis, and cannabis derivatives on its list as Schedule I substances.”

Advocates Applaud Nevada Judge’s Ruling

After the ruling, ACLUNV noted that the decision means the pharmacy board does not have the authority to regulate cannabis under any schedule. Legal director Chris Peterson praised the judge’s ruling, saying that there has “been an ongoing inconsistency with how Nevada categorizes cannabis.” 

“For some people, it’s a medicine or a good time on a Friday night, and for some people it was a felony,” Peterson said in a statement from the civil rights organization. “We’re glad that we’ve now resolved this inconsistency to prevent further injustice, and we’ll continue our work to ensure that the promise of cannabis decriminalization is realized in Nevada.”

Shawn Hauser, a partner at the cannabis and psychedelics law firm Vicente Sederberg LLP, said that Hardy’s ruling “is a positive development in cannabis reform, in line with recognition by federal lawmakers and the public that cannabis has known medicinal value, can be safely regulated, and is not properly classified as a schedule 1 controlled substance that has no accepted medical use.” 

“Like Colorado, Nevada legalized cannabis through its constitution and developed a robust state regulatory system governing cannabis businesses,” Hauser said. “This case is important precedent confirming that state agencies cannot take action in conflict with state constitutional and statutory provisions, despite the illegality of cannabis under federal law.”

Ashley Dodson, the president and co-founder of Cannabis Equity and Inclusion Community, said that the court’s ruling on Wednesday will help foster social equity in Nevada’s regulated cannabis industry.

“Cannabis has been legal in Nevada for decades, but that hasn’t stopped law enforcement from treating Black and Brown people like criminals. We’re grateful for the ACLU of Nevada for taking this case on and for Judge Hardy for hearing it with fairness and dignity,” Dodson said in a statement. “As far as social equity is concerned, we’ve seen businesses act strategically to keep Black and Brown people out of the unlicensed market by preventing pathways to ownership. CEIC is hopeful that as the last loopholes allowing for the criminalization of cannabis fall by the wayside, we can get back to our original mission of assisting the communities harmed the most by the failed War on Drugs find a way into the industry.”

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