DEA Admits the Obvious: Hemp Delta-8 is Legal

The Alabama Board of Pharmacy asked DEA whether or not Delta-8 THC (D8) is a controlled substance. Delta-8 is an isomer of Delta-9 THC, and today is made from CBD from hemp. On September 15, 2021, Terrence L. Boos, Ph.D., Chief of the Drug & Chemical Evaluation Section, Diversion Control Division replied what many of us have been saying for months: Delta-8 THC from hemp is NOT a controlled substance, only as long as THC is below 0.3%:

“The CSA, however, excludes from control “tetrahydrocannabinols in hemp (as defined under section 1639o of Title 7).” Hemp, in turn, is defined as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol [(Δ9-THC)] concentration of not more than 0.3 percent on a dry weight basis.” 7 U.S.C. 1639o(1).

Accordingly, cannabinoids extracted from the cannabis plant that have a Δ9-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 implications of this are that now every state law against Delta-8 from hemp is unconstitutional, just as are the state laws against smokable hemp. See the Dormant Commerce Clause.

While the quality of most of the D8 products on the market are suspect, nevertheless 84 years of Prohibition have proven banning it doesn’t work, and will be more likely to worsen quality not improve it.

This development bodes well for the other isomers of THC Congress saw fit to legalize that can be made from CBD, such as CBN, Delta-10 THC, and others. If you were under the impression that hemp contained no THC, note that there can be as much as 6 pounds of THC per acre of hemp, all legal.

One hemp group appears to be working to surreptitiously drive D8 and CBD into the regulated marijuana market, at the behest of those stakeholders. Ironically, CBD companies are paying them to do it, wool pulled firmly over eyes.

Delta-8 THC is listed by name in the CSA under tetrahydrocannabinols code 7370, it was added by DEA to comply with the SCND. That’s the United Nation’s international drug law to which almost every country ceded sovereignty. But DEA Rules are only for DEA Licensees, the rest of us are RICO felons to it.

DEA has had its hands tied since the 2004 Ninth Circuit decision permanently enjoining it from enforcing the CSA on hemp.

Incidentally, the Farm Bill protecting CBD and D8 as well as hemp in general expires in 2023.

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