MJBizMag February 2022 - 44

LIQUID
GOLD?
Minors Loophole
Ambiguity in the Controlled Substances Act leaves
a pathway for intoxicating hemp-derived cannabinoids
By Neil M. Willner
D
elta-8 THC exploded onto the
scene in 2019, followed by
delta-10 THC, THC-O acetate
and HHC in 2020 and 2021.
While state regulatory agencies have
opted for a whack-a-mole approach
that focuses on controlling one
cannabinoid at a time, the federal
government has been largely silent
on the legal status of hemp-derived
cannabinoids.
Recently, however, the U.S. Drug
Enforcement Administration (DEA)
released a letter shedding light on its
position that these cannabinoids might
not be illegal after all.
Federal Position
Tetrahydrocannabinols (THC) are
Schedule 1 controlled substances under
the Controlled Substances Act (CSA),
which defines THC as naturally contained
in the cannabis plant, as well as
synthetic equivalents of the substances
contained in the plant.
The 2018 Farm Bill amended the
CSA's definition of " tetrahydrocannabinols "
to exclude " tetrahydrocannabinols
in hemp. " Accordingly, THCs
that are naturally occurring in hemp
are legal and not controlled under the
CSA, provided they have a delta-9 THC
concentration of not more than 0.3%.
Reiterating this point, in September
2021, the DEA responded via letter
to the Alabama Board of Pharmacy's
inquiry on the legal status of
delta-8 THC. The DEA wrote in its
44 February 2022 | MJBizMagazine
nonbinding response that " delta-8
THC synthetically produced from noncannabis
materials is controlled under
the CSA as a 'tetrahydrocannabinol.' "
Three-step Analysis
How does this DEA position impact
hemp-derived delta-8 THC, THC-O
acetate, HHC and other minor
cannabinoids proliferating the
market? Since delta-8 THC occurs
naturally only in trace amounts in
hemp, manufacturers are extracting
CBD from hemp and converting the
cannabinoid into delta-8 THC.
The question becomes: Does this
conversion process make D-8 a synthetic
form of THC? Using an overly
simplified three-step analysis, one
could argue that the answer is " no. " The
three steps are:
* Is the cannabinoid naturally
contained in the hemp plant?
* Is the cannabinoid produced from
non-cannabis materials?
* Does the cannabinoid extract have
less than 0.3% delta-9 THC on a
dry-weight basis?
If the cannabinoid naturally occurs
in hemp, is produced from cannabis
material and has a delta-9 THC
concentration of 0.3% or less on a dryweight
basis, the manufacturer could
argue that the cannabinoid is not an
illegal controlled substance.
Take THC-O acetate, for example:
THC-O is not naturally occurring in
hemp-or any cannabis plant, for that
matter. Rather, manufacturing the
molecule requires extracting CBD
from hemp and converting the CBD
into a delta-8 THC distillate. Then,
acetic anhydride and an acid catalyst
are added to the delta-8 THC to
make THC-O. Since it is not naturally
occurring, it fails the three-part test.
HHC (short for hexahydrocannabinol),
on the other hand, is a hemp
derivative occurring naturally in small
quantities in the plant. To make HHC,
manufacturers first extract CBD from
hemp, convert the CBD to delta-8 THC
and then hydrogenate the delta-8 THC
into HHC.
HHC might pass the three-step
analysis because 1) it is naturally
occurring in hemp, albeit in nominal
amounts; 2) it is produced from hempderived
CBD, which is a cannabis
material; and 3) the final extract will
generally have less than 0.3% delta-9
THC on a dry-weight basis.
How Does the Federal
Analogue Act Impact the
Legality of these Minor
Cannabinoids?
Passed in 1986, the Federal Analogue
Act (FAA) allows the federal
government to treat any chemical
" substantially similar " to a controlled
substance listed in Schedule 1 or
Schedule 2 of the CSA as if it were
itself listed in Schedule 1. Under
the FAA, a controlled substance
analogue is any substance that has
MJBizMag February 2022

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