DEA Weighs In On Legality Of THCA, Delta-8 And Other Minor Cannabinoids

The Drug Enforcement Administration is currently considering and evaluating its legal position surrounding cannabinoids such as THCA, delta-8 THC and hydrogenated CBD, reported Marijuana Moment.

With a letter dated June 9, the agency addressed confusion around the legality of minor cannabinoids under the Controlled Substances Act (CSA).

These minor cannabinoids are considered tetrahydrocannabinols. If a product contains naturally derived cannabinoids and its delta-9 THC does not exceed 0.3%, they are considered legal hemp. If the THC limit is exceeded, the cannabinoid is regarded as a Schedule I controlled substance.

Attorney Rod Kight, who analyzed the document authored by Terrance Boos, chief of DEA’s Drug and Chemical Evaluation Section, and posted it on Reddit, said it should be carefully read and understood. It remains unclear who is behind the request to the DEA to provide more information on the scheduling status of the cannabis components.

“In summary, this DEA pronouncement is bound to create more confusion in an already confusing area of law; however, it should properly be read as simply restating the fact that hemp producers must comply with the total THC test to harvest their hemp,” Kight wrote. “Post-harvest (i.e., post-production), the 2018 Farm Bill’s definition of hemp clearly states that the delta-9 THC levels are what matters, not the levels of THCA.”

Delta-8 THC And Legal Loophole

Meanwhile, the regulation of delta-8 THC remains an issue to be addressed. The controversial hemp-derived intoxicating cannabinoid has been hindering the cannabis industry reform efforts for years.

As a chemical component of the cannabis plant, delta-8 THC occurs naturally in minimal concentrations in cannabis plants. It can produce a mild psychoactive effect in some people, similar to delta-9 THC.

New industrial methodologies enable delta-8 THC to be converted from CBD derived from hemp. Products developed as a result of the 2018 Federal Farm Bill that legalized hemp are, therefore, not subject to the exact testing requirements as cannabis, creating a legal loophole.

Over the years, many have voiced concerns about the safety of delta-8 THC. It takes a proficient and experienced chemist to ensure the safe conversion of CBD molecules into THC molecules, as imprecise techniques could potentially result in dangerous impurities in the final product.

The DEA has declared that all cannabinoids created synthetically are classified as Schedule I substances. The agency is currently in the process of formulating a concluding rule, which will likely emphasize the prohibition of synthetic cannabinoids as per the existing law.

“If the product contains any quantity of synthetically produced tetrahydrocannabinol, it is controlled in schedule I of the CSA, unless it is specifically exempted or listed in another schedule,” the letter said.

What About delta-9 THCA, HHC And H4-CBD?

Even though it’s a non-intoxicating substance, the DEA said that when assessing whether a plant is legal hemp or illegal marijuana, delta-9 THCA must be accounted for in a post-decarboxylation test for “total THC.” This rule applies only to its production.

THCA – or tetrahydrocannabinolic acid - is the natural THC present in all raw cannabis plants. Once heated, THCA in raw cannabis frees its carboxylic acid group, transforming to delta 9 THC. This entire process is called decarboxylation.

“Cannabis-derived delta-9-THCA does not meet the definition of hemp under the CSA because, upon conversion for identification purposes as required by Congress, it is equivalent to delta-9-THC,” Boos said.

However, in his analysis, Kight emphasized that hemp derivatives, such as delta-9 THCA, are federally permissible in compliance with the Farm Bill if they do not contain more than 0.3% delta-9 THC.

In addition, both hexahydrocannabinol (HHC) and hydrogenated CBD (H4-CBD) remain off limits, as they don’t "occur naturally in the cannabis plant and can only be obtained synthetically, and therefore do not fall under the definition of hemp,” the letter said.

H4-CBD is an example of hydrogenation entering the cannabis industry. Hydrogenation occurs when chemists add hydrogen atoms to cannabinoid molecules, causing a chemical reaction that changes the active cannabinoid into a different, usually stronger one.

HHC is chemically known as 11-Nor-9β-hydroxyhexahydrocannabinol and is a semi-synthetic cannabinoid and a hydrogenated form of THC.

Photo: Benizinga edit of photo by Shutterstock