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DEA Evaluates Legal Status of Lesser Known Cannabinoids Amid Conflicting Laws and Rising Popularity

The Drug Enforcement Administration (DEA) is currently scrutinizing the legal classification of certain cannabinoids, namely THCA, delta-8 THC, and hydrogenated CBD, as per a recent letter. This correspondence was in response to an inquiry about the scheduling of these cannabis elements according to the Controlled Substances Act (CSA). Since the federal legalization of hemp containing up to 0.3 percent delta-9 THC by dry weight under the 2018 Farm Bill, there's been ambiguity about the legality of such minor cannabinoids.

Rod Kight, an attorney, examined the letter (found on Reddit) and found that the DEA classifies delta-8 THC and THC-hexyl as tetrahydrocannabinols. Products with these naturally occurring cannabinoids are considered legal hemp, as long as the delta-9 THC content remains below 0.3 percent. If the concentration exceeds this threshold, the product becomes a Schedule I controlled substance.

Since the legalization of hemp, delta-8 THC's popularity has soared, reaching markets even where marijuana is still illegal. Often, this cannabinoid is produced synthetically from natural CBD, a process the DEA deems as creating a Schedule I substance. The Farm Bill states that hemp products, after production, can't have more than 0.3 percent delta-9 THC. This makes naturally occurring derivatives like delta-9 THCA federally legal.

Kight also addresses the new letter's focus on delta-9 THCA. This cannabinoid is non-psychoactive, and must be counted in a post-decarboxylation "total THC" test when distinguishing legal hemp from illegal marijuana. Yet, Kight counters that this requirement only applies during production, and thus doesn't hold true for harvested cannabis. After harvesting, in specific conditions, delta-9 THCA concentration can increase.

The DEA's statement might generate further confusion in an already complex legal area, but Kight clarifies that hemp producers must adhere to the total THC test for their crop's legality. Post-production, the 2018 Farm Bill defines hemp by the delta-9 THC levels, not THCA levels.

The DEA also clarified that hexahydrocannabinol (HHC) and H4-CBD, which do not occur naturally in the cannabis plant and can only be synthetically produced, do not meet the hemp definition. Any product containing any amount of synthetically produced tetrahydrocannabinol is controlled under the CSA's Schedule I unless exempted or listed under another schedule. Other cannabinoids from state markets, namely delta-8 THC-O and delta-9 THC-O, are also considered illegal controlled substances since they don't meet the federal definition of legal hemp.

The DEA has recognized that cannabis seeds are typically uncontrolled and legal under current law, regardless of the THC levels in the resulting plants. Additionally, Epidiolex, a prescription CBD medication, was removed from the CSA's Schedule V by the DEA in 2020, fully descheduling it.

Despite the increasing state-level legalization, the DEA reported seizing over 5.7 million marijuana plants last year, showing a significant uptick from previous years. Interestingly, cannabis-related arrests in 2022 saw a decline.

A terminated DEA officer, who tested positive for THC from using legal hemp-derived CBD oil for pain relief, is currently challenging the agency in federal court.


  • United States. Drug Enforcement Administration. "Correspondence Regarding Cannabinoids." Personal communication.

  • "Discussion on DEA's stance on cannabinoids." Reddit,

  • "Agriculture Improvement Act of 2018." United States Congress,

  • Kight, Rod. "Legal Analysis on Cannabinoids." Kight on Cannabis,

  • "Controlled Substances Act." United States Congress,

  • "DEA 2020 Domestic Cannabis Eradication/Suppression Statistical Report." United States Drug Enforcement Administration,

  • "Former DEA officer challenges agency over THC." Federal Court Documents, United States Courts,


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