DEA letter answers legality questions surrounding Delta-8

A letter from the DEA may change the way states look at Delta-8 and other cannabinoids in the future

As the number of states banning or restricting Delta-8 THC, and in some cases Delta-10 or other cannabinoids as well, a contention point for many has been the legality of Delta-8 itself.

While Delta-8 is a naturally occurring cannabinoid in cannabis plants and thusly is legal under the 2018 Farm Bill, it is most often converted from CBD in commercial production. This distinction has left a gap in the legality standpoint of Delta-8 and Delta-10 products from a federal standpoint as synthetically produced intoxicants or drug analogues are also considered Schedule I controlled substances.

Until recently there has been little definitive information about the enforcement policy on Delta-8 from a federal standpoint. But in June, DEA Chief of Intergovernmental Affair Sean Mitchell stated in a public forum with the Florida Department of Agriculture and Consumer Services that at this time the only thing that constituted a controlled substance as it related to hemp was delta-9 THC greater than 0.3 percent on a dry-weight basis.

While that comment was a step forward, it left some flexibility in interpretation that many did not find wholly reassuring.

In September, however, a letter from DEA to Dr. Donna C. Yeatman, R.Ph. Executive Secretary of the Alabama Board of Pharmacy made a more firm statement declaring, “cannabinoids extracted from the cannabis plant that have a Delta-9 -THC concentration of not more than 0.3 percent on a dry weight basis meet the definition of “hemp” and thus are not controlled under the CSA.”

   

The full text of the DEA letter lends context and leaves less ambiguity and room for interpretation.

While the DEA clarification affirms the hopes of many in the hemp industry, it does not impact the restrictions, regulation, or legality of Delta-8 or other cannabinoids on a state-by-state basis.

With health warnings from the FDA and CDC previously issued this year, the DEA clarification may open the door for more oversight and regulation to come from the FDA as to how Delta-8 and other cannabinoid products are marketed and what claims are made. 

We have repeatedly seen the FDA step forward regarding CBD and claims made by companies on labeling, advertising, and websites.

Read the full text of the DEA letter to the Alabama Board of Pharmacy below.