When congress passed the 2018 Farm Bill, there was a lot of excitement around the legalization of hemp and its cannabinoids. It explicitly and comprehensively legalized hemp as well as “the seeds thereof and all derivatives, extracts, cannabinoids (etc.).” At the time, this elicited an enormous sigh of relief from the then-nascent CBD industry.
The one exception to the blanket legalization laid out in the legislation was Delta 9 THC, which was limited to a total of 0.3% “on a dry weight basis”.
At the time, this was an acceptable stipulation. After all, the CBD industry was mostly concerned with their growing corner of the hemp market, and keeping Delta 9 THC below 0.3% was doable (even in a full spectrum product).
It meant that farmers had to carefully monitor their crops to ensure the THC was kept to a minimum, but it also ensured that customers wouldn’t get high accidentally (assuming companies are paying attention to the law).
Fast forward just a couple of years, and suddenly some legislators are feeling a bit queasy about the wording of the law, which was so very specific about only limiting Delta 9 THC. With a couple of years of hindsight and the seemingly sudden proliferation of Delta 8 and Delta 10 THC products, lawmakers now fear that the Hemp Act may have accidentally legalized psychoactive cannabinoids, unleashing them on an unwary public.
Even in states like Oregon and California (where cannabis is fully legal), there is concern about Delta 8 THC’s widespread availability (and unregulated status). These concerns have to do mainly with accessibility to minors, as well as the proliferation of low-quality and potentially contaminated products.
The agency has yet to publish an official statement on whether it sees Delta 8 products as legal under the Farm Bill, but two recent events have given insight into how agency leadership is thinking.
While states haven’t waited for the federal government to weigh in on Delta 8, the CBD industry itself has been closely watching and listening to any output on the subject from the Drug Enforcement Agency (DEA) on the topic. The agency has yet to publish an official statement on whether it sees Delta 8 products as legal under the Farm Bill, but two recent events have given insight into how agency leadership is thinking.
The first incident takes us back to a virtual town hall hosted by the Florida Department of Agriculture and Consumer Services in June. During the wide-ranging meeting, DEA Chief of Intergovernmental Affair Sean Mitchell fielded the question of whether the agency considered delta-8 THC an illegal substance.
His response came as a surprise to some: “What I want to say, and I’ll be very, very deliberate and clear, at this time—I repeat again, at this time—per the Farm Bill, the only thing that is a controlled substance is delta-9 THC greater than 0.3 percent on a dry-weight basis.”
That seems clear enough. The second statement that made news headlines came in a letter to the Alabama Board of Pharmacy in September in response to a request for clarification on the control status of Delta 8.
According to the DEA’s response, “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 [Controlled Substances Act].”
The letter further states 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.”
Again, the letter reiterates that Delta-8 THC “synthetically produced from non-cannabis materials is controlled under the CSA as a ‘tetrahydrocannabinol.’”
This raises the question of what exactly constitutes a synthetic cannabinoid. This is an exceptionally important point since most Delta 8 products on the market are in fact synthetically created from CBD. The letter seems to state that only those THC products created from “non-cannabis materials” are illegal.
The hemp and CBD industry are taking these combined statements as a signal to go ahead with production and sales, but they’ll still be bound by any state regulations and bans that are in place.
It’s also worth noting Sean Mitchell’s emphasis that his statement reflected DEA policy “at this time.” But many CBD companies are investing heavily in their bet that Delta 8 is here to stay.