What Does the New DEA Letter on THCO Mean for Novel Cannabinoids?

Written by Courtney Barnes

On February 13, 2023, the U.S. Drug Enforcement Administration (DEA) issued a regulatory opinion on the control status of tetrahydrocannabinol acetate ester (THCO), confirming that the agency classifies delta-8-THCO and delta-9-THCO as schedule 1 controlled substances.  

Delta-8-THCO and delta-9-THCO have been growing in popularity in states where high THC and/or cannabis-derived products remain illegal, and many industry players assumed that these compounds were distinct enough from delta-9-THC to escape DEA control. Unfortunately, the DEA has made its stance clear:  if a cannabinoid is not naturally occurring in the cannabis plant, it does not satisfy the legal definition of hemp.

Notably, its opinion does not apply to Delta-8-THC. Delta-8-THC is a cannabinoid that is naturally present in the cannabis plant (albeit in negligible quantities). Here, the agency opined that, because delta-8-THCO and delta-9-THCO do not occur naturally in the cannabis plant – and can only be produced using chemical synthesis – the compounds are not “hemp.”

Instead, the DEA concluded that these cannabinoids satisfy the definition of “tetrahydrocannabinols,” which is defined as, “[a substance] naturally contained in a plant of the genus Cannabis, as well as synthetic equivalents of the substances contained in the cannabis plant and/or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity to those substances contained in the plant.”  The agency noted that delta-8-THCO and delta-9-THCO are tetrahydrocannabinols that have similar chemical structures and pharmacological properties to cannabis, and accordingly fall within such schedule I designation.It is important for business operators who sell products containing delta-8-THCO or delta-9-THCO to take notice of this announcement and adjust their business practices accordingly. Please contact our law firm for more information or strategic guidance on this important regulatory update.