DEA says Delta 8 from Hemp is Legal

DEA Says Delta 8 Is Not Illegal

Amidst the flurry of alarmist headlines and the chatter of an industry having a complicated discussion with itself, a critical piece of Delta-8 THC news managed to fly under nearly everyone’s radar: The Drug Enforcement Agency itself clarified in September that hemp-derived Delta-8 THC (∆8-THC) is not a controlled substance.

In a letter dated September 15th of this year from the the DEA’s Drug and Chemical Evaluation Section states that only cannabinoids extracted from non-compliant cannabis or synthesized from non-cannabis materials are controlled substances.

“Accordingly, cannabinoids extracted from the cannabis plant that have a ∆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 CSA.”

The letter also clarified a frequent point of confusion in discussions of Delta-8 (and the other 130+ hemp cannabinoids): namely, that the use of chemical synthesis to produce these natural compounds is not relevant to their control status. The term “synthesis,” which has varied meanings in scientific literature and no established meaning in the law, along with the DEA’s definition of “synthetic THCs” (a class of man-made THC analogs not found in the plant), have led many to think that Delta-8 was illegal because it is primarily produced from CBD through a process called chemical synthesis. The letter dispels that as an issue altogether by stating that, for the purposes of the Controlled Substances Act only “∆8-THC synthetically produced from non-cannabis materials is controlled under the CSA…”

Over at they have this take:

The significance of this clarification cannot be overstated. For over a year now the Delta 8 industry has operated in a perceived grey area due to confusion over an Interim Final Rule released by the DEA on August 20, 2020 saying synthetic compounds were illegal without ever fully defining the term “synthetic”. This release completely eliminates that grey area and shows that there are two forms of synthetic delta 8 with one being good (derived from hemp – legal) and one being bad (made from non-hemp materials – illegal).

Hemp Cannabinoids Farm Bill

The HIA has staked out the legal position that, because hemp cannabinoids were clearly legalized* by the 2018 Farm Bill (*technically, hemp was removed from the CSA and is federally “legal” pending some long-overdue regulations to hammer out interstate commerce and other pesky details), states should provide a path to market for these hemp products that is grounded in science and prioritizes public safety. As of November 1st, 18 states have opted to ban Delta-8 and four are actively considering doing so —reflecting a woeful lack of insight into the historical failures of prohibition and squandering the vast opportunity presented by the removal of hemp and its 130+ cannabinoids from the CSA. States choosing to revert to failed prohibitionist tactics are not only stifling innovation and entrepreneurship, they will perpetuate gray and black markets for cannabinoids that leave consumers at greater risk and undermine honest enterprise.

The day before the DEA issued this letter, September 14th, the HIA’s Executive Director said this in a Hemp Industry Daily editorial,

The HIA believes that we should never stop working to create the hemp industry we want, but we also need to contend with the hemp industry as it really is.
And the reality is that, while they have issued an interim rule and made statements relating to the subject, the DEA has not scheduled any hemp cannabinoids.

It’s not often you see an opinion publicly confirmed by the very government agency at issue so quickly, but in this case the DEA made it clear the very next day that Delta 8 is not a controlled substance.


How you can help: The HIA’s legal case responding to the DEA’s August, 2020 Interim Final Rule treating Intermediate Hemp Extract as a controlled substance is being funded by the nonprofit Hemp Legal Defense Fund, and it needs and deserves industry support

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