In a long-anticipated action, the US Drug Enforcement Administration (DEA) issued an interim final rule (IFR) today on the implementation of the hemp provisions of the Agricultural Improvement Act of 2018 (Farm Bill) as it relates to marijuana and tetrahydrocannabinols (THC) under the Controlled Substances Act (CSA). You can read the IFR by clicking here.
As I will discuss, the IFR threatens to destroy the hemp/CBD industry. Fortunately, it is not set in stone. You can submit comments on it through October 20, 2020 by clicking here and following the online instructions at that site for submitting comments. To ensure proper handling of comments, you should reference “RIN 1117- AB53/ Docket No. DEA-500” on all correspondence.
In this article, I discuss the IFR’s criminalization of synthetic forms of hemp-derived THC, including what is arguably the hottest new cannabinoid on the market, delta-8 THC.
As most readers of this blog know, the DEA is the US federal agency charged with enforcing the CSA. Far from being even-handed, the DEA is the primary player and policy shaper in the notorious and failed “War on Drugs”, particularly with respect to cannabis. It has aggressively and persistently asserted itself into the hemp industry, despite the Farm Bill’s express removal of hemp, a lawful form of cannabis, from the CSA. The issuance of today’s IFR, which will be published in the Federal Register tomorrow (August 21, 2020) and is effective immediately, continues the DEA’s pattern of unwanted and aggressive interference with a lawful industry.
The IFR starts off by deceptively downplaying its intent: “This interim final rule merely conforms DEA’s regulations to the statutory amendments to the CSA that have already taken effect, and it does not add additional requirements to the regulations.” In fact, a careful reading of the IFR reveals its intent to be much different. It is not an overstatement to assert that adoption and enforcement of the IFR will severely disrupt, and potentially destroy, the hemp industry.
In this article, I discuss the DEA’s criminalization of delta-8 THC (D8), a relatively unknown cannabinoid derived from hemp that is quickly gaining in popularity. Even if you do not have much knowledge about D8, I hope you will not dismiss this issue since it is a particularly egregious example of overzealous regulation by the DEA that will continue to dog the entire hemp/CBD industry if it is allowed to persist.
II. THE DEA IS IMPROPERLY CRIMINALIZING DELTA-8 THC DERIVED FROM HEMP
My office receives calls about D8 every day. Of the minor cannabinoids, which include CBG, CBN, and CBC, D8 is rapidly moving into a major position. This is primarily due to the fact that it produces a psychoactive effect (ie, it gets you high) but is derived from lawful hemp. I recently posted a detailed description and legal analysis of D8, including a section on why the federal Analogue Act does not apply, which you can read by clicking here.
It is clear that D8 which is naturally expressed in the hemp plant is not a controlled substance. However, producing and marketing it currently presents a unique legal issue: what is the legal status of D8 that is derived from cannabidiol (CBD) or some other hemp-derived cannabinoid? This issue is important because most D8 on the market is a derivative of CBD. Current hemp cultivars do not express D8 in sufficient concentrations or quantities to be economically viable to extract it for commercial purposes. However, converting CBD into D8 can be profitable under the right circumstances. The IFR contains language which appears to be directed at this form of D8:
“The [2018 Farm Bill] does not impact the control status of synthetically derived tetrahydrocannabinols (for Controlled Substance Code Number 7370) because the statutory definition of “hemp” is limited to materials that are derived from the plant Cannabis sativa L. For synthetically derived tetrahydrocannabinols, the concentration of delta-9 THC is not a determining factor in whether the material is a controlled substance. All synthetically derived tetrahydrocannabinols remain schedule I controlled substances.” (emphasis added)
Based on this language, all cannabinoids that are derived from hemp with a delta-9 THC concentration not exceeding 0.3% are lawful. However, the Rule specifically states that any synthetically derived THC remains an illegal Schedule I controlled substance. This begs the question of what is meant by the term “synthetic”. According to Wikipedia, “a synthetic substance or synthetic compound refers to a substance that is man-made by synthesis, rather than being produced by nature. It also refers to a substance or compound formed under human control by any chemical reaction, either by chemical synthesis or by biosynthesis.” (emphasis added)
What this means is that D8 created by a chemical reaction (such as by converting CBD to D8 through the use of a catalyst) will likely be deemed by the DEA to be an illegal synthetic THC. Based on this position it is possible that the DEA will prosecute people and/or initiate civil forfeiture actions against people who are producing and/or selling D8.
The DEA has overstepped its bounds and misinterpreted the 2018 Farm Bill. Specifically, the 2018 Farm Bill includes hemp-derived “cannabinoids” and “derivatives” in its definition of “hemp”. In other words, cannabinoids and derivatives of hemp are themselves “hemp” under the statute. For this reason, a derivative of hemp-derived CBD is itself “hemp” under the statute. (I explain this in more detail in the article referenced above.)
Additionally, the DEA’s prohibition of “synthetic” THC is improper because the Farm Bill itself contemplates that synthetic cannabinoids will be exempt from the Controlled Substances Act (CSA). The Farm Bill expressly removes “derivatives” of hemp from the CSA. The Chemicool Dictionary defines a derivative as “a compound that can be imagined to arise or actually be synthesized from a parent compound by replacement of one atom with another atom or group of atoms.” Wikipedia defines a chemical derivative as “a compound that is derived from a similar compound by a chemical reaction.” In this context, a “synthetic” cannabinoid from hemp is the same thing as a “derivative” of hemp. Thus, stating that all synthesized THC is illegal, including D8 and other forms of THC that do not contain more than 0.3% delta-9 THC, is a direct contradiction of the statutory language in the 2018 Farm Bill, which expressly removes hemp derivatives from the CSA.
The issue of D8’s legal status is new, at least with respect to hemp. Additionally, while it has been known and researched for several decades, D8 is relatively new to consumers. My clients are reporting rapid growth and quick acceptance by the market. While the DEA’s position is not surprising, it is frustrating. For readers of my blog who are not interested in D8, this may appear to be a minor issue. However, it is a prime example of the DEA’s attempt to chip away at the significant progress that has been made with hemp and its cannabinoids during the past 5 years. I encourage you to comment on the link provided above and to reach out to your elected officials. While D8 may be totally unknown to most people, hemp is not. It is a popular issue with both Democrats and Republicans, and our leadership needs to understand that the DEA is threatening it.
Disclaimer: The legal positions expressed in this article are not intended to be, and should not be construed as, legal advice. The issues presented and legal theories asserted are novel. You should consult with an attorney before taking any action regarding these matters.