THC-O is not hemp and is illegal under Farm Bill, DEA says

Wondering where hemp-derived cannabinoids are legal in the United States? Check out MJBizDaily‘s new delta-8 THC map.

The U.S. Drug Enforcement Administration considers so-called “hemp-derived” “novel cannabinoids” that do not exist in the hemp plant naturally – such as THC acetate ester, commonly referred to on the market as THC-O – to be illegal.

The agency’s opinion on the controversial topic became public Monday thanks to North Carolina-based cannabis attorney Rod Kight.

Last year, Kight asked the DEA to clarify its stance – and its interpretation of the Controlled Substances Act – about THC acetate, which is one of a slew of new cannabinoids that have appeared in vaporizer cartridges, edibles and other products since the passage of the 2018 Farm Bill.

That bill legalized hemp production nationwide and, in turn, triggered an onslaught of products containing “intoxicating cannabinoids” derived from hemp.

Unlike delta-8 THC and delta-9 THC, both of which exist naturally in the hemp plant, THC acetate, or THC-O, does not.

Because it “can only be obtained synthetically, and therefore do(es) not fall under the definition of hemp,” THC acetate is a “controlled substance,” wrote Terence L Boos., chief of the DEA’s Drug and Chemical Evaluation Section.

The DEA’s clarification follows a U.S. 9th Circuit court decision in 2022 that also found delta-8 THC products are “hemp” and thus legal under the 2018 Farm Bill.

How the DEA’s clarification will affect the market is currently unclear.

While the federal agency likely lacks the capacity and interest to crack down on hemp merchants selling products containing THC acetate, state regulators have also sounded the alarm over hemp-derived intoxicating cannabinoids.

Either way, the DEA’s interpretation of the law is straightforward and clear, Kight told MJBizDaily.

“If the hemp plant naturally produces a certain cannabinoid, compound, etc., such as delta-8 THC or CBN or THCV, etc., then it is not a controlled substance, regardless of how it is processed or manufactured into a finished product,” Kight said, noting one exception: more than 0.3% THC by dry weight.

“If the hemp plant does not naturally produce a compound, then it (the compound) is not ‘hemp,’” he added.

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