Last week, the Drug Enforcement Agency (the arm of the Department of Justice that, among other things, maintains the list of controlled substances under the aptly-named Controlled Substances Act) released interim rulemaking to finally implement the hemp-related changes to the CSA brought about by the 2018 Farm Bill. (link) The DEA claims that the interim rulemaking “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”; however, if we engage in a little bit of exegesis, we can suss out an interesting point about how the DEA views one of the more novel products on the market.
There’s been a question in the hemp community (and its lawyers) as to whether Delta-8 THC, a THC analog (link), that’s derived from hemp is lawful under the 2018 Farm Bill’s changes to the CSA. This is based solely on a read of how the 2018 Farm Bill excluded hemp from “marihuana” and THC “in hemp” from Schedule I, since the 2018 Farm Bill doesn’t directly address Delta-8 THC (a debate I noted briefly in a prior Musings (link)). Within this interim rulemaking, the DEA seems to have weighed in on the debate by reiterating that “all synthetically derived tetrahydrocannabinols remain schedule I controlled substances.”
Without getting too deep into the science (indeed, the extent of my science understanding is humor-related (link)), operators have been extracting Delta-9 THC from hemp and converting it to Delta-8 THC through a chemical process (explained in part here), since Delta-8 THC naturally occurs in such low concentrations that it’s only cost-effective to create Delta-8 THC in the lab. Although the DEA doesn’t define “synthetically derived”, it’s used that term before to describe lab-created compounds, strongly suggesting that the DEA would label Delta-8 THC that way (and therefore treat it as a Schedule I controlled substance). Granted, it’s not certain that the DEA meant to address Delta-8 THC here – Delta-8 THC isn’t specifically named in the rulemaking; however, neither are other isomers of THC, which are also generally lab-created.
My takeaway? Well, it’s the not-very-surprising conclusion that the DEA isn’t going to do the cannabis industry any favors by offering an expansive reading of vague Congressional lawmaking, particularly when it comes to a psychoactive substance.