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DEA Cracks Down on Delta-8 and Extracts

There has been a lot of speculation on whether or not Delta-8 would remain legal or not. Although many thought the hemp canabinoid would remain legal throughout the year, it did not.

The Drug Enforcement Administration stated, “As a result, a cannabis derivative, extract, or product that exceeds the 0.3% Δ9 -THC limit is a schedule I controlled substance, even if the plant from which it was derived contained 0.3% or less Δ9 -THC on a dry weight basis,” (click here to view the full).

Under the section ‘Changes to the Definition of Tetrahydrocannabinols’, the DEA creates turmoil by stating, “For synthetically derived tetrahydrocannabinols, the concentration of delta-9 THC is not a determining factor in whether the material is a controlled substance. All synthetically derived tetrahydrocannabinols remain schedule I controlled substances.” This could be interpretted as delta-8.

In order to meet the AIA’s definition of hemp, and thus qualify for the exception in the definition of marihuana, a cannabis-derived product must itself contain 0.3% or less Δ9 -THC on a dry weight basis. It is not enough that a product is labeled or advertised as “hemp.” The U.S. Food and Drug Administration (FDA) has recently found that many cannabis-derived products do not contain the levels of cannabinoids that they claim to contain on their labels Cannabis-derived products that exceed the 0.3% Δ-9-THC limit do not meet the statutory definition of “hemp” and are schedule I controlled substances, regardless of claims made to the contrary in the labeling or advertising of the products.


In addition, the definition of hemp does not automatically exempt any product derived from a hemp plant, regardless of the Δ9-THC content of the derivative. In order to meet the definition of “hemp,” and thus qualify for the exemption from schedule I, the derivative must not exceed the 0.3% Δ9 -THC limit. The definition of “marihuana” continues to state that “all parts of the plant Cannabis sativa L.,” and “every compound, manufacture, salt, derivative, mixture, or preparation of such plant,” are schedule I controlled substances unless they meet the definition of “hemp” (by falling below the 0.3% Δ9 -THC limit on a dry weight basis) or are from exempt parts of the plant (such as mature stalks or non-germinating seeds). See 21 U.S.C. 802(16) (emphasis added). As a result, a cannabis derivative, extract, or product that exceeds the 0.3% Δ9 -THC limit is a schedule I controlled substance, even if the plant from which it was derived contained 0.3% or less Δ9 -THC on a dry weight basis.


Finally, nothing in the AIA or in these implementing regulations affects or alters the requirements of the Food, Drug, & Cosmetic Act (FD&C Act).


Official PDF

An interesting move by the DEA may force processors to change their SOP’s to comply with their crackdown. The first step would be to process biomass past crude oil and into compliant distillate or isolate. Fide Freight will take this very seriously with our shipping as safety and compliance is at the top of our list.

There is a lot of speculation, fear, and fierce claims that the new DEA Interim Final Rule. While it made some things clear, like extracts and interpreting Delta 9, they failed to specifically mention Delta 8. This has spawned a quick debate on whether it is or is not legal. This article is to show the arguments on both sides. This article is not to be used for legal advice or legal interpretation.

Delta 8 is not Banned Argument

We have been listening and talking to many experts in the industry who have a serious financial stake in the Hemp Industry. They take the view that since the DEA did not specifically mention Delta 8, it cannot be classified as “banned” or “illegal”.  When in a court of law, it would be very difficult to convince a judge that Delta 8 is illegal when it does not specifically say that it is. One cannot write the law in the grey area. Some are convinced this is what the DEA is trying to do, whether it is intentional or not.

Another legitimate argument is that synthetically derived THC that does not fall under the AIA’s definition and explanation of hemp has always been illegal. They claim that since the isomers of legal hemp remain legal as long as they fall under 0.3% Delta-9 THC. This was argued on Future 4200 which was and is very persuasive. You can read the full post here.

Delta 8 is now Illegal Argument

Other people from the same industry are claiming that this section of the DEA’s interim ruling covers Delta 8.

The AIA does not impact the control status of synthetically derived tetrahydrocannabinols (for Controlled Substance Code Number 7370) because the statutory definition of “hemp” is limited to materials that are derived from the plant Cannabis sativa L. For synthetically derived tetrahydrocannabinols, the concentration of Δ9-THC is not a determining factor in whether the material is a controlled substance. All synthetically derived tetrahydrocannabinols remain schedule I controlled substances.

They claim that since Delta 8 is a synthetically derived tetrahydrocannabinol, that it will fall under this passage, which clearly bans these substances.

Conclusion

There is no clear way of saying which argument is correct. Fide Freight will step back and evaluate the industry for the near future to see how it plays out before making a decision on Delta 8 products.

Readers of this website should contact their attorney to obtain advice with respect to any particular legal matter. No reader, user, or browser of this site should act or refrain from acting on the basis of information on this site without first seeking legal advice from counsel in the relevant jurisdiction.

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Jon Wilcox

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