The DEA has clarified that THC-O is not a legal hemp derivative
I have been concerned about the proliferation of THC acetate ester (THCO) for a while. It has always been my view that THCO is a controlled substance under federal law. Although it can be made from cannabinoids from hemp, THCO is not naturally expressed by the hemp plant. It is a laboratory creation that does not occur in nature, at least not from the hemp plant.
I have had many consultations in which people equate THCO with delta-8 THC (D8) based on the fact that most of the D8 on the market is made chemically from another cannabinoid. During these conversations, people say that D8 is a “derivative” of hemp and it is considered lawful “hemp” under the 2018 Farm Bill. By extension, they state that since THCO is also a hemp derivative it meets the definition of hemp, too. I always inform them that they are wrong. D8 and THCO are different in a very important way, namely that D8 is naturally produced by the hemp plant; THCO is not.
To be clear, as I have consistently argued, and which both the DEA and the 9th Circuit Court of Appeals have confirmed, D8 falls within the definition of “hemp” because it is a “derivative” as set forth in the 2018 Farm Bill. For this reason, many people assume that THCO also meets the definition of a hemp derivative since it is typically created from a starter cannabinoid. This is not correct. D8 is distinguishable from THCO because the hemp plant naturally produces D8; however, it does not produce THCO. From this perspective, and unlike D8, THCO is properly seen as synthetic THC, not “hemp”. For this reason, I have consistently advised clients not to create or distribute THCO. On a personal level, and based on a research letter published earlier this year in the Journal of Medical Toxicology, I routinely advise personal friends not to consume THCO due to the potentially serious medical consequences of vaping it.
Due to my concerns, I asked the Drug Enforcement Administration (DEA) for its opinion on THCO. In its response letter, below, it states:
“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…. Thus, delta-9-THCO and delta-8-THCO meet the definition of “tetrahydrocannabinols,” and they (and products containing delta-9-THCO and delta-8-THCO) are controlled in schedule I by 21 U.S.C. § 812(c) Schedule I, and 21 CFR § 1308.11(d).“
Although I do not always agree with the DEA’s view on cannabis matters, I agree with this opinion and, frankly, am not surprised. This is what I have been saying for a while.
Inquiry to the DEA regarding THCO:
Rod Kight is an international cannabis lawyer. He represents businesses throughout the cannabis industry. Additionally, Rod speaks at cannabis conferences, drafts and presents legislation to foreign governments, is regularly quoted on hemp matters in the media, and is the editor of the Kight on Cannabis legal blog, which discusses legal issues affecting the hemp industry. You can contact him by clicking here.
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