The legal landscape surrounding THC-O, a synthetic cannabinoid derived from hemp, is intricate and constantly evolving. This compound, while gaining popularity for its effects, sits in a precarious position in terms of legality, especially under federal law in the United States.
Differentiating Hemp from Marijuana: Legislative Changes
Historically, the term “marijuana” encompassed all cannabis plants under the Controlled Substances Act (CSA), categorizing them as Schedule I controlled substances. This broad classification was redefined with the introduction of the 2014 Farm Bill. This pivotal legislation distinguished “hemp” from “marijuana” in legal terms. Hemp was specifically defined as the Cannabis sativa L. plant, or any part of it, with a delta-9 THC concentration not exceeding 0.3% on a dry weight basis. In contrast, “marijuana” refers to any cannabis plant or derivative with a delta-9 THC concentration above this 0.3% threshold.
The 2014 Farm Bill was a landmark in cannabis legislation, enabling the development and exploration of hemp-based programs. It legally recognized hemp, setting the stage for its cultivation and research. Building on this foundation, the 2018 Farm Bill further broadened the scope of hemp’s legal status. It allowed for extensive cultivation, processing, distribution, sale, and utilization of hemp and its derived products. This expansion marked a significant step in the evolution of the hemp industry, opening new avenues for its commercial and industrial use.
THC and THCO: Understanding the Differences
Following the 2018 Farm Bill, the U.S. market has seen an influx of various hemp-derived cannabinoids. Among these, delta-8 THC and delta-10 THC are particularly notable for their psychoactive properties, similar to delta-9 THC.
Delta-8 and delta-10 THC are present in cannabis plants, but only in minimal quantities. Extracting them directly from hemp is prohibitively expensive. Instead, manufacturers typically extract cannabidiol (CBD) and then chemically convert it into delta-8 or delta-10 THC. This method aligns with the 2018 Farm Bill’s definition of “hemp,” making these substances federally legal.
THCO, or THC-O-acetate, stands apart as it is not a naturally occurring cannabinoid. Unlike CBD, CBG, and CBN, THC-O is not directly derived from hemp.
To produce THC-O, a process involving acetic anhydride, a highly flammable and colorless liquid used in various industries, is employed. This complex process starts with extracting Delta-8 THC from hemp, followed by a chemical reaction with acetic anhydride to synthesize THCO. Due to the hazardous chemicals and specialized equipment required, THCO production is more intricate and regulated.
Delta-8 THC, delta-10 THC, delta-8 THCO, and delta-10 THCO are all laboratory creations from legally defined hemp plants. The DEA’s guidance and federal court rulings, such as the U.S. Court of Appeals for the Ninth Circuit’s decision in AK Futures v. Boyd St. Distro, have affirmed the legality of hemp-derived delta-8 and delta-10 THC under federal law. However, this led to a widespread misconception in the hemp industry that delta-8 THCO and delta-10 THCO were also legal, overlooking the significant differences in their production and natural occurrence.
DEA’s Firm Stance on THCO and Its Implications
In its February 13 letter, the DEA unequivocally stated that delta-8 and delta-9 THCO, being synthetic derivatives not naturally occurring in cannabis, do not meet the legal criteria for hemp. This clarification comes amidst confusion in the industry regarding the legal status of various THC compounds.
The key distinction, as outlined by the DEA, lies in the natural occurrence of delta-8 THC in cannabis plants, albeit in minimal quantities. This natural presence allows lab-produced delta-8 THC to be classified as legal hemp under the 2018 Farm Bill, provided it originates from a hemp plant. In contrast, delta-8 and delta-10 THCO, being synthetic creations, do not qualify for this exemption under the Controlled Substances Act.
The DEA’s clarification maintains the legal status of naturally derived delta-8 and delta-10 THC. However, it categorizes THCO products as controlled substances. Manufacturers and sellers of delta-8 or delta-10 THC can continue their operations under federal law, but must remain vigilant about evolving state and local regulations.
The Anticipated 2023 Farm Bill
The upcoming expiration of the 2018 Farm Bill brings a critical juncture for the regulation of hemp-derived cannabinoids. Congress faces a pivotal decision: to maintain the current regulatory framework, overhaul it completely, or find a middle ground. This could involve leaving the regulation of psychoactive cannabinoids to states, imposing a federal ban, or setting baseline regulations with room for stricter state-level controls.
As the 2023 Farm Bill approaches, the hemp industry is keenly observing and actively lobbying. The decisions made by Congress will significantly shape the future of hemp-derived cannabinoids, influencing industry practices and legal landscapes across the United States.
The case of THC-O highlights the complexities and challenges in regulating cannabinoids, particularly those synthesized from hemp. As federal and state laws continue to evolve, the legal status of THC-O remains a subject of debate and interpretation, demonstrating the need for clear and consistent regulatory frameworks in this emerging sector.