It has 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 main psychoactive component of the plant, is considered illegal marijuana. The Drug Enforcement Administration states that both the delta-8 and -9 THC-O cannabinoids, which have been gaining popularity in recent years, should be considered illegal controlled substances.
The DEA's position on the legal status of delta-8 and -9 THC-O came after an investigation by lawyer Rod Kight. The DEA sent a response on February 13, highlighting that Delta-8 and -9 THCO are not found naturally in the cannabis plant and can only be obtained synthetically. Therefore, they do not fall under the definition of hemp. Both synthetic cannabinoids are considered controlled substances in Schedule I of the Controlled Substances Act (CSA) because of their chemical structures and pharmacological activities, which are similar to delta-9 tetrahydrocannabinol (or delta-9 THC), the main psychoactive compound found in marijuana found in the cannabis plant.
The DEA's perspective on these synthetic cannabinoids focused on their chemical structures rather than the source of their extraction. In response to the DEA statement, Kight said he wasn't surprised, as that had been his stance for some time. The cultivation of hemp plants resulted in the extraction and production of non-intoxicating cannabinoids such as CBD. However, it also indirectly allowed hemp companies to extract and produce intoxicating synthetic cannabinoids from CBD.
These new cannabinoids have a chemical structure and effects similar to those of the delta-9 THC found in marijuana, which is responsible for the psychoactive effects. The popularity of delta-8 and 9 THC-O products has increased in the United States, and some states use them as replacements for marijuana in the absence of regulations on recreational marijuana in the absence of regulations on recreational marijuana. However, there is not enough peer-reviewed scientific research on these products, and their psychoactive effects are only known through anecdotal consumer reports. Shane Pennington, lawyer for Vicente Sederberg LLP, which focuses his practice on federal appeals and regulatory issues related to cannabis and hemp, explained that the letter from the DEA represents an official determination of the state of control of THC-O by the federal agency with delegated authority to implement the CSA.
As such, it would be binding on the DEA in court. In addition, Pennington highlighted that the DEA letter applies not only to THC-O delta-8 and delta-9 products, but also to other synthetic cannabinoids derived from hemp with intoxicating effects that have emerged in recent years, such as HHC. It is worth noting that, unlike products with delta-8 and -9 THC-O, the DEA formerly classified products with delta-8 THC as uncontrolled substances, as long as they were extracted from the natural plant and were not synthesized. This is because delta-8 THC, as well as other hemp-derived cannabinoids, such as THC delta-10, are found naturally in hemp plants.
The DEA's stance on delta-8 aligns with last year's Ninth Circuit ruling, which established that delta-8 is not a controlled substance because the CSA only refers to natural delta-9 THC. Therefore, Pennington explained that the DEA letter on delta-8 THC-O and delta-9 THC-O would be binding on the agency in federal court, unless and until the agency takes similar formal steps to announce a change in policy. Despite the absence of federal regulations for hemp-derived cannabinoids, some states have established their own regulatory frameworks. Delta-8 THC products are subject to different regulations in various United States.
The U.S. Food and Drug Administration (FDA) requests additional data to evaluate the safety of hemp-derived products. Recently, the agency announced that it would not create regulations that would allow CBD to be marketed as food or dietary supplements. However, he did express his commitment to working with Congress to find a legislative solution to this issue.