Real or Not Real? The Difference Between Legal Delta-8/Delta-10 THC and Illegal Delta-8/Delta-10 THCO

By J. Hunter Robinson & Rachel M. LaBruyere on March 9, 2023

Last week, we wrote about the Drug Enforcement Administration’s (DEA) February 13, 2023 response letter stating that delta-8 THCO and delta-9 THCO – two forms of THC acetate ester (THCO) – are illegal controlled substances under federal law. The DEA’s decision centered on THCO’s “synthetic” nature. The DEA explained that “[d]elta-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 [2018 Farm Bill’s] definition of hemp.”

Delta-8 THCO and delta-9 THCO are far less common than the psychoactive cannabinoids delta-8 THC and delta-10 THC, which are contained in products sold in dozens of states. But delta-8 THC and delta-10 THC are both created in a lab, so aren’t they also “synthetic” and therefore illegal under the DEA’s decision?

The short answer is “no.” And the reason why is that both delta-8 THC and delta-10 THC are naturally present in cannabis plants, even if only in trace amounts. Because it’s far too costly to process entire cannabis plants to extract these nominal amounts of delta-8 and delta-10 THC, hemp processors usually extract cannabidiol (CBD) from the plant and then convert the extracted CBD into delta-8 or delta-10 THC.

This means delta-8 and delta-10 are both “lab created,” but that doesn’t make them “synthetic.” Because those cannabinoids “occur naturally in the cannabis plant,” their lab-created versions still qualify as federally legal “hemp” under the 2018 Farm Bill so long as the starting point for the process was a hemp plant. As the DEA explained in a September 2021 letter to the Alabama Board of Pharmacy, only THC “in or derived from the cannabis plant” can fall outside the purview of the federal Controlled Substances Act. “[S]ynthetic” THC – like delta-8 and delta-9 THCO – cannot.

In short, the DEA’s February 13 response letter did not alter the status quo for delta-8 and delta-10 THC at the federal level, where naturally derived versions of these cannabinoids remain legal. But as we recently discussed in another post, there will be a new Farm Bill in 2023, and whether and how to regulate hemp-derived, psychoactive cannabinoids at the federal level is one of the most important policy choices Congress faces with respect to hemp.

Stay tuned for updates.

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