DEA Could Issue New Rules for Delta-8, Synthetic THCs

Jacob Vaughn
Products like delta-8 can be found in stores across the U.S., but a move by the DEA could change that.
Many hemp-derived THC products on the market today are made using some sort of chemical process. These products have exploded in popularity over the last few years, but new rules proposed by the Drug Enforcement Administration (DEA) could send it all grinding to a halt.

As first reported by the cannabis news site marijuanamoment.net, the DEA will propose new rules that could add synthetically made cannabinoids like delta-8 to the federal list of controlled substances.

The U.S. legalized hemp in 2018, and Texas did the same the following year. Federal and state laws say that cannabis with 0.3% delta-9 THC or less is called hemp and is legal. Cannabis with more than 0.3% delta-9 is illegal marijuana. Delta-9 is the main ingredient in weed that gets users high, and it’s often referred to simply as THC.

After hemp was legalized, manufacturers started making products with other forms of THC in them such as delta-8. As long as they didn’t exceed the legal amount of delta-9, the manufacturers have argued, they should be allowed to do their thing. But regulators don't agree. 

“We know that regulators at both the state and federal level are champing at the bit to pass laws to ban these products." – Zachary Maxwell, Texas Hemp Growers

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Terrance Boos, chief of the DEA's Drug and Chemical Evaluation Section, noted the new rules at the agency’s 2023 Supply Chain Conference this month, according to marijuanamoment.net. Boos said the DEA is in the process of changing regulations regarding hemp-derived THCs after multiple petitions on the issue and recommendations from the U.S. Department of Health and Human Services. Part of the change could include decontrolling CBD up to 0.1% on a weight-to-weight basis or weight-volume basis, Boos said at the conference. According to marijuanamoment.net, it seemed Boos was talking about descheduling synthetic CBD because natural CBD is already legal as long as it doesn't contain more than 0.3% delta-9 THC.

The new rules, if implemented, would clarify the legal status of synthetically created cannabinoids like delta-8.

Delta-8 occurs naturally in the hemp plant, but not in abundant amounts. That’s why manufacturers have largely turned to extracting CBD from hemp and using a chemical process to turn it into as much delta-8, or delta-9 or delta-10 as they want.

At the DEA conference, Boos said this isn’t allowed. He said “synthetic [THCs] were not exempted” from the federal controlled substances list. “That act of taking that substance in any synthetic step now brings it back under the [Controlled Substances Act],” he said.

Zachary Maxwell, president of Texas Hemp Growers, told the Observer he saw something like this coming.

"For more than a year, Texas Hemp Growers has informed its members that the synthetic cannabinoid market — most notably delta-8, THCo, HHC and other synthetic THCs — are legally dubious and extremely volatile,” Maxwell said. “In fact, Texas' market for many of these synthetic THCs depends on the grace of an injunction issued by a county judge, which could be overturned any day.

“We know that regulators at both the state and federal level are champing at the bit to pass laws to ban these products. Most people have acknowledged this in their long-range planning and have already divested from synthetics.”

Others, like local hemp company Wyatt Purp, have stayed away from the synthetic stuff all together. Wyatt Larew, co-founder of the Bedford-based company, said he’s been selling delta-9 gummies that are completely natural, no synthesis required. He also sells products with something called THCa, a precursor to delta-9. Larew said if the DEA’s new rules include a total THC cap, he wouldn't be able to sell his THCa anymore. But, he said his delta-9 products would still be compliant because they’re not created synthetically.

The DEA also recently issued guidance on another popular hemp-derived cannabinoid called THCO, saying it, too, is a controlled substance. This is because THCO doesn't occur naturally and can be created only synthetically. This prompted some stores to remove products containing THCO from their shelves.

Texas cannabis advocates have had their eyes on bills that could ban the synthetic creation of these cannabinoids. State Sen. Charles Perry, a Lubbock Republican, filed Senate Bill 264, which would introduce a total THC cap for hemp and outlaw products with synthetic THCs. A companion bill was also filed in the House.

Those two bills have yet to make it out of their respective committees and are as good as dead with only about two weeks left in the legislative session. However, some are worried that a ban on hemp-derived THCs could be tacked onto other bills before the legislative session is over.

But, if the DEA issues a new rule clarifying that synthetically created THCs derived from hemp are controlled substances, it won’t matter what Texas does this legislative session.