THCO products can be found on store shelves in smoke shops across the country, including in Texas. Some say the stuff is stronger than regular THC, the main compound in cannabis that gets users high. It can be found in the form of edibles, vapes and flower. But the DEA’s recent response to Rod Kight, the attorney, already has businesses removing THCO products from their shelves and online stores.
On Feb. 13, the DEA told Kight in a letter that the agency considers THCO to be a Schedule I Controlled substance. It all comes down to what can be found naturally in the cannabis plant.
Cultivating hemp was federally legalized by the 2018 Farm Bill. It’s been legal in Texas since the state passed House Bill 1325 the following year. The laws created a legal distinction between marijuana and hemp. Cannabis with more than 0.3% delta-9 THC, the chief psychoactive component in the plant, is considered illegal marijuana. If the plant has less than 0.3% delta-9 THC on a dry weight basis, it is considered legal hemp.
After these bills passed, businesses began selling products with CBD, a non-psychoactive component in the hemp plant that people say has therapeutic effects. But eventually, products with something called delta-8 THC started hitting the market. Delta-8 THC is another compound that can be found in the cannabis plant. It can get you high, and it’s chemically very similar to the real stuff, delta-9 THC (often just referred to as THC.) As long as these delta-8 products didn’t exceed 0.3% delta-9 THC on a dry weight basis, companies and consumers assumed they were legal.
There have been plenty of legal challenges to that interpretation of the law over the last few years, and bills have been filed to close what some policymakers consider legal loopholes that have allowed these products to be sold. Some states have banned the products altogether. There are efforts in Texas to do the same, like Sen. Charles Perry's Senate Bill 264, which aims to ban all “synthetically derived [THCs].”
Different products have poured into the market based on this interpretation of the law. These included products with THCO, delta-10 THC, something called THCP and plenty of others. All of these chemical substances found or derived from cannabis are generally referred to as cannabinoids. Not all of them can be found naturally in the cannabis plant, though. That’s where the DEA is drawing a line in the sand, at least for THCO.“I think we can assume that the DEA is drawing a ‘bright line’ between compounds that the hemp plant produces and ones that it does not." – Rod Kight, attorney
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The technical term for THCO is THC acetate ester. The federal agency told Kight it knew of two kinds of THCOs: delta-8 THCO and delta-9 THCO. The DEA explained to Kight that THC is considered a Schedule I controlled substance under the Controlled Substances Act. The definition of THC under the act includes synthetic substances that are chemically similar, like THCO. “Thus, delta-9-THCO and delta-8-THCO meet the definition of [THC],” the DEA wrote in its letter.
“Delta-9-THCO and delta-8-THCO do not occur naturally in the cannabis plant and can only be obtained synthetically, and therefore do not fall under the definition of hemp,” the agency said.
Kight wrote a response to the DEA letter on his blog, called Kight on Cannabis. In the blog post, he said he’s been concerned about the growing popularity of THCO for a while. “It has always been my view that THCO is a controlled substance under federal law,” Kight wrote on his blog. “Although it can be made from cannabinoids from hemp, THCO is not naturally expressed by the hemp plant. It is a laboratory creation that does not occur in nature, at least not from the hemp plant.”
People have argued with him over his view of THCO. This is because it’s made virtually the same way as the delta-8 found in products all over the country. While cannabinoids like delta-8 and delta-10 can be found naturally in the cannabis plant, there generally isn’t enough to get users high. Extracting what little delta-8 may be found in a plant and making products from that is too complicated and costly for companies to find it profitable. So, manufacturers have been taking CBD, which is found abundantly in the plant, and converting it into different cannabinoids through a chemical process. Both the Food and Drug Administration and the Centers for Disease Control and Prevention have issued warnings about the manufacture of these products. The two agencies worry about potential byproducts left in these cannabinoids as a result of the manufacturing process.
During conversations about THCO, Kight wrote, "People say that [delta-8] is a ‘derivative’ of hemp and it is considered lawful ‘hemp’ under the 2018 Farm Bill. By extension, they state that since THCO is also a hemp derivative it meets the definition of hemp, too.”
He would always tell people making this point that they’re wrong. “[Delta-8] and THCO are different in a very important way, namely that [delta-8] is naturally produced by the hemp plant; THCO is not,” he wrote. “From this perspective, and unlike [delta-8], THCO is properly seen as synthetic THC, not ‘hemp.’”
This is why he’s advised his clients not to create or distribute THCO. He also advises his friends to stay away from the stuff because a recent study suggested vaping THCO can have serious medical consequences. That study suggested vaping cannabinoid acetates, like THCO, could create a toxic gas. “Due to my concerns, I asked the Drug Enforcement Administration for its opinion on THCO,” Kight wrote in his blog.
In an email to the Observer, Kight said the letter should be considered the DEA’s official position on THCO. “Certainly, a court could disagree, but I doubt that would occur given that the DEA is the federal agency charged with determining whether compounds should be scheduled or not and, if so, the schedule into which they are listed,” Kight told the Observer. However, Kight said he’s not sure what enforcement will look like on the ground.“Delta-9-THCO and delta-8-THCO do not occur naturally in the cannabis plant and can only be obtained synthetically, and therefore do not fall under the definition of hemp." – DEA
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“To date, I am unaware of the DEA taking much, if any, enforcement action with respect to THCO,” Kight said. “Given the press that its letter regarding THCO received, and companies pulling THCO products from their shelves, it may not find that it is necessary to take further action.”
He added: “Things may be different at the local level. I anticipate that we will see some local enforcement of the DEA's position.”
While the DEA’s letter is specific to THCO, a similar argument could be made against other cannabinoids on the market that can’t be found naturally in the cannabis plant. “I think we can assume that the DEA is drawing a ‘bright line’ between compounds that the hemp plant produces and ones that it does not,” Kight said.
There’s conflicting information on these matters from various sources online, and developments in the industry can change the legal landscape pretty rapidly. For example, Kight said the DEA’s argument wouldn’t really apply to another popular psychoactive cannabinoid called HHC because it occurs naturally in the plant. Plenty of sources say HHC occurs naturally but, as Cannabis Business Times reported in February 2022, this has not been shown in peer-reviewed research. Kight also says HHC occurs naturally in cannabis. But either way, he thinks HHC is in the clear because it isn't technically a form of THC. "So [it] would not likely fall within the controlled substances act listing for THC," Kight said.
While some businesses have removed THCO from shelves and online stores, a big player in the hemp-derived THC market called 3Chi is still selling the stuff. The description of the company's THCO products contains a glaring contradiction to the DEA’s recent letter. The site says THCO is “likely found in the plant although reference standards for testing Delta-8 THCO Acetate do not exist that can verify it.”
However, the company says two publications have shown the existence of delta-9 THCO in the cannabis plant. The company’s description of THCO is supposed to include links to these two publications. The only one that works directs the reader to a 1978 paper supposedly showing delta-9 THCO was successfully extracted from a cannabis plant. If that happened, the DEA apparently doesn’t know about it.
It’s not entirely clear how things will shake out in Texas as a result of the DEA’s statement. Even before the DEA letter, Zachary Maxwell, president of Texas Hemp Growers Association, told the Observer he was advising members of the association to stay away from THCO.
“Some shops have had to recalibrate their inventories after the DEA's announcement, but the overall effect appears minimal,” Maxwell said. “Few of our own members have expressed concerns, as most of them were already aware that THCO was on dubious legal standing. I think the bigger devastation to Texas' hemp industry will come if and when the state legislature passes its ban on delta-8 THC.”
Asked if one day the market could have it all, the natural and the synthetic products, Maxwell isn't sure where synthetics might fit in moving forward. "There's questions within our industry right now about if we even want to be associated with synthetic THCs, like THCO and HHC, moving ahead," Maxwell said. "Most people would agree that the use of these synthetic THCs is really a symptom of a broader problem: that Texans want cannabis legalization without overburdened state monopolies driving up the cost to unaffordable levels.
"If and when the boot lifts on cannabis prohibition in Texas, I think most consumers will not care about these novel THCs, and the question of co-existence will be moot."
