THC-O has grown in popularity in recent years. Since THC-O (which is short for tetrahydrocannabinol-oxygen-acetate) is a hemp-derived product that can only be created synthetically, it has long been thought by many to fall outside of the federal prohibition on cannabis as a Schedule I controlled drug. As a result, retailers across the country have been offering THC-O to their customers—even in states like North Carolina where cannabidiol (CBD) oils are still only legal for limited medical purposes.
But, a recent letter from the U.S. Drug Enforcement Administration (DEA) has potentially changed the landscape of the legality of THC-O.
On August 17, 2022, attorney Rod Kight (who operates the website cannabusiness.law) sent an email to the DEA asking for clarification regarding the legality of THC-O. In his email, Kight asked the DEA to, “confirm that . . . THC-O is not currently listed as a controlled substance,” under the Controlled Substances Act (CSA). He also asked the DEA to confirm whether, assuming THC-O is not a controlled substance, it is considered a “controlled substance analog” of Delta-9 THC when it is derived from hemp. Kight also specifically asked:
“Given that the definition of ‘hemp’ under 7 U.S.C. § 1639o(1) includes ‘all derivatives,’ is THC-O a controlled substance analog under 21 U.S.C. § 813 when it is derived from CBD [extracted from hemp]?”
After not receiving a response from the DEA for several months, Kight followed up on February 7, 2023. A week later, he received a letter from the DEA that he posted on his website. In its letter, the DEA states:
“[Delta-8 and Delta-9 THC] 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-THC-O and delta-8-THC-O are tetrahydrocannabinols having similar chemical structures and pharmacological activities to those contained in the cannabis plant. Thus, delta-9-THC-O and delta-8-THC-O meet the definition of ‘tetrahydrocannabinols,’ and they (and products containing delta-9-THC-O and delta-8-THC-O) are controlled in schedule I . . . .”
In short, despite the fact that THC-O is synthesized using Delta-9 THC extracted from hemp, it is not considered a form of hemp—at least not according to the DEA. Instead, the DEA treats THC-O the same as THC derived from cannabis, even though THC-O comes from hemp.
According to Kight, he was “not surprised” by the DEA’s letter, and on his website he states that has consistently advised his clients not to synthesize or sell THC-O. However, it is clear that many attorneys have not been giving the same advice—as the sale of THC-O is common throughout the United States, even in states that heavily regulate cannabis and cannabinoids (including North Carolina, among others).
As noted in a Forbes article discussing the legality of THC-O, “[t]he DEA’s perspective on these synthetic cannabinoids focused on their chemical structures rather than the source of their extraction.” It is also significant that the DEA focused on the “pharmacological activities” associated with THC-O—which can be roughly translated to THC-O’s known psychedelic effects. Since THC-O is structurally similar to THC and has similar effects, the DEA leaned on these factors to classify THC-O as a Schedule I controlled drug even though it is derived from hemp.
What Does the DEA’s Letter Mean for the Legality of THC-O at the State Level?
Of course, the Schedule I classification of THC and THC analogs is nothing new. Cannabis has been a Schedule I drug since the CSA created the federal drug schedules in 1970. The question regarding THC-O’s potential federal legality as a hemp derivative arose out of Congress’s passage of the Agriculture Improvement Act, commonly known as the “Farm Bill,” in 2018. The Farm Bill officially placed hemp outside of the CSA’s schedules, and it served as the impetus for many of the state-level efforts to legalize and decriminalize CBD and other hemp-derived products.
But, states were legalizing cannabis and hemp-derived cannabinoids well before the enactment of the Farm Bill, and questions regarding the conflicting treatment of these substances at the state and federal levels have persisted since this time. So, while the DEA’s letter may call into question the legality of THC-O in states that have enacted laws focused solely on legalizing hemp-based products, it does not seem to change the analysis in other contexts. Also, it is not entirely clear whether states that are focused on legalizing hemp will accept the DEA’s analysis of THC-O’s legality. While focusing on THC-O’s chemical structure and “pharmacological activities” is one option, the legality of THC-O could just as easily be analyzed with an emphasis on its source—as a derivative of hemp.
As the Forbes article notes, the Farm Bill, “indirectly enabled hemp businesses to extract and produce synthetic intoxicating cannabinoids from CBD,” and, “[t]he popularity of delta-8 and-9 THC-O products has increased in the United States, with some states using them as a substitute for marijuana in the absence of recreational marijuana regulations.” So, despite the DEA’s classification of THC-O as a Schedule I controlled substance, some states may still have an interest in treating THC-O differently in order to continue with the development of their hemp-based economies.
What Should You Do if You Want to Sell (or Currently Sell) THC-O Products?
As a THC-O retailer, or as a prospective THC-O retailer, what does all of this mean for you? The short answer is that you should treat THC-O products just like all of the other products you currently stock or are thinking about carrying at your store. You should make an informed decision based on the laws that apply in your state, and you should seek advice from an experienced attorney if you have any concerns about the legality of THCO (or any other cannabis or hemp products). While more and more states are making the push to legalize these products, the DEA’s approach to legalization (or lack thereof) means that retailers in all states need to do their due diligence and make the best decisions they can based on the constantly evolving regulatory landscape.