The Drug Enforcement Administration (DEA) has publicly declared delta-9 THCO and delta-8 THCO as Schedule I controlled substances. In August 2022, cannabis attorney Rod Kight sent an inquiry to the DEA to clarify its position on THCO, or THC acetate ester. Specifically, is THCO a controlled substance analog under 21 U.S.C. 813?
Under 21 U.S.C. 813, the DEA may treat a controlled substance analog as a controlled substance, or in other words, if a substance is substantially similar enough to a current controlled substance under schedule I or II, the DEA may treat that ‘unlisted’ substance like its controlled counterpart. THCO does not naturally occur in the cannabis plant, but as Kight noted THCO can be derived from cannabinol that has itself been extracted from hemp. Under 7 CFR 990.1, “Hemp” is defined as:
The plant species Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a total delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis
As such, THCO has been in a seemingly gray area; it is not a naturally occurring cannabinoid, yet can be derived from hemp. On the other hand, THCO potentially was analogous enough to the controlled THC to fall under 21 U.S.C. 813.
The DEA clarified this legal gray area by responding in February 2023 that because “delta-9 THCO and delta-8 THCO do not naturally occur in the cannabis plant and can only be obtained synthetically,” the substances do not fall under the definition of legal hemp. Instead, DEA determined THCO to meet the definition of “tetrahydrocannabinol,” under its controlled substances regulations, which includes “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,” per 21 CFR § 1308.11(d)(31). In specific response to Kight’s inquiry about controlled substances analogues, the DEA noted that “because delta-9-THCO and delta-8-THCO are controlled substances, they do not meet the definition of controlled substance analogues under 21 U.S.C. § 813.”
DEA’s response to THCO provides additional guidance beyond the earlier declaration on hemp-derived delta-8. While the DEA has now taken a firm stance against hemp-derived THCO, the agency earlier declared in a public letter in September 2021 that “ cannabinoids extracted from the cannabis plant that have a delta 9 -THC concentration of not more than 0.3 percent on a dry weight basis meet the definition of “hemp” and thus are not controlled under the CSA.” However, “delta-8 synthetically produced from non-cannabis materials is controlled under the CSA as a “tetrahydrocannabinol.” While DEA has not specifically weighed in on all artificially derived cannabinoids on the market, it has made clear that “only tetrahydrocannabinol in or derived from the cannabis plant—not synthetic tetrahydrocannabinol—is subject to being excluded from control as a “tetrahydrocannabinol[] in hemp.”
Have further questions about federal or state regulations on hemp-derived cannabinoids and hemp products? Confused about the legality of delta-8 or other cannabinoids? Please schedule a consultation with EARTH Law, LLC to answer any questions. You can contact us by email at info@earthlawllc.com or by telephone at 541-632-3946.