The Drug Enforcement Administration Clarifies That Delta-9-THCO and Delta-8-THCO Are Controlled Substances

Published on: February 21, 2023

On February 13, 2023, the US Drug Enforcement Administration (DEA) declared in a letter that the cannabinoids delta-8 and -9 THCO are both considered controlled substances due to their chemical structures.

In response to an inquiry sent in 2022 and again in early February 2023 by an attorney in North Carolina, Rod Kight, about the control status of delta-8 and -9 tetrahydrocannabinol acetate ester (THCO), the US Drug Enforcement Administration (DEA) responded on February 13, 2023 that both cannabinoids are controlled substances (1).

“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. Delta-9-THCO and delta-8-THCO are tetrahydrocannabinols having similar chemical structures and pharmacological activities to those contained in the cannabis plant. 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 USC § 812(c) Schedule I, and 21 CFR § 1308.11(d),” wrote the DEA in the letter to Kight (2).

“D8 is distinguishable from THCO because the hemp plant naturally produces D8; however, it does not produce THCO,” wrote Kight in a blog post about the DEA response (3). “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.”

The 2018 Farm Bill, due to be renewed this year, legalized hemp containing up to 0.3% THC and created interest and confusion around hemp-derived cannabinoids such as delta-8 THC. In 2021 the DEA declared delta-8 products are legal as long as they’re derived from the plant, and in 2022 an appeals court ruled that it was legal because federal law defines hemp as any part of the cannabis plant, including derivatives, extracts, and cannabinoids, as long as they contain less than 0.3% delta-9 THC by weight (2,4).

For more on delta 8 and delta 10, please read the Stuck on Compliance blog.

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