Is THC-O Legal? The DEA Says No

Written by

Lee Johnson

Lee Johnson is the senior editor at CBD Oracle, and has been covering science, vaping and cannabis for over a decade. At CBD Oracle, he focuses on research-driven deep dives...

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Summary

  • Sellers argue that THC-O is legal because it is derived from hemp, and therefore also classified as hemp.
  • The 2018 Farm Bill defines hemp as “any part of” the cannabis plant, provided that the delta-9 THC level is below 0.3%.
  • Since THC-O (whether delta-8 or delta-9 THC-O) is not a natural component of the cannabis plant, it is not included in this definition.
  • The DEA expressed this in a letter to cannabis attorney Rod Kight, and instead classified them as controlled substances.
  • Remember that the DEA has likely always held this position; nothing has really changed.
  • Stores are still selling THC-O products, but as with delta-8 in 2021, there may be raids of offending products this year.

The US Drug Enforcement Administration (DEA) has declared that THC-O is illegal. THC-O, like delta-8, is derived from cannabinoids found in legal hemp, and as such, was assumed to be legal at the federal level too. However, after an inquiry by cannabis attorney Rod Kight, the DEA has confirmed that they consider the cannabinoid illegal because it does not meet the definition of “hemp” established by the 2018 Farm Bill.

What does this mean for consumers and sellers? Will people get arrested for it? Here’s what you need to know.

Is THC-O Legal?

No, THC-O is not a natural component of the cannabis plant and so cannot fall under the federal definition of “hemp.”

Erik Paulson, PhD, from InfiniteCAL Labs explained that “The common way of producing delta-8 and delta-9 THC-O is by starting with delta-8 or delta-9 THC and transforming it through a chemical reaction called acetylation.”

Sellers have argued that because THC-O is produced from hemp, and hemp is legal under the 2018 Farm Bill, then THC-O is legal too. Essentially the question is: does THC-O meet the Farm Bill’s definition of hemp? This is written in the law as:

“The term `hemp’ means 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 concentration of not more than 0.3 percent on a dry weight basis.”

The key part of this definition for THC-O is “the plant Cannabis sativa L. and any part of that plant.” Rod Kight made this point when we asked why he’d considered THC-O illegal even before this inquiry:

“Unlike delta-8 THC, for which I created the argument supporting its legal status, THC-O is not a compound that the cannabis (hemp) plant naturally produces. Given that the plant does not produce this compound, my concern has always been that the DEA would consider it to be synthetic THC, rather than a lawful form of “hemp”, which is the reason I reached out to the DEA.”

In other words, the Farm Bill will only ever really cover natural components of the plant. However, as Rod alludes to, it also suggests delta-8 is legal, since that is a natural component of the cannabis plant. 

The DEA Says Delta-8 THC-O and Delta-9 THC-O Are Illegal

While the above may seem convincing enough, it’s important to stress that the federal government appeared to have no idea what they implied by the wording of the Farm Bill. They probably did not expect to make delta-8 THC legal either, but the law says what it says. Advocates could counter, for instance, that THC-O is a “derivative” of hemp and therefore falls under the definition.

Someone may have an opinion either way on this topic, but until recently that’s all they were. To provide some clarity, the DEA was asked to comment on this dispute by Rod Kight, and they responded:

“Delta-9-THCO and delta-8-THCO do not occur naturally in the cannabis plant and can only be obtained synthetically, and therefore do not fall under the definition of hemp.”

Concluding that:

“Delta-9-THCO and delta-8-THCO meet the definition of “tetrahydrocannabinols,” and they (and products containing delta-9-THCO and delta-8-THCO) are controlled in schedule I by 21 U.S.C. § 812(c) Schedule I, and 21 CFR § 1308.11(d).”

In essence, the DEA said that either form of THC-O cannot be hemp because they are not naturally present in the hemp plant. Since they aren’t excluded as “hemp,” they then come under the definition of “tetrahydrocannabinols” from the controlled substances act.

Will the Government Crack Down on THC-O Sellers?

While there may be warning letters and even a couple of raids off the back of this announcement, a large-scale crackdown is unlikely.

Rod Kight commented to us that, “I do not see the DEA cracking down on sales of THCO in the near-term, though it is possible that state and local law enforcement agencies will.”

The key point to remember is that the recent announcement is just the DEA being asked what their opinion of THC-O is. 

Shawn Hauser, co-chair of the Hemp and Cannabinoids Department at Vicente LLP, stressed that the “DEA commented specifically on THC-O because a great attorney, Rod Kight, directly inquired to them about the legal status of delta 8-THC-O and delta-9-THCO specifically.”

It’s not like they’ve changed their mind or like they would have been unaware of the open sale of an intoxicating cannabinoid. It might sound bad, but this means if they were going to really come down hard they’d probably have done it already.

There are many stores selling THC-O, with some who had a page for THC-O previously but with none currently available or 404 pages where it used to be. Store owners have left comments on Rod Kight’s blog, expressing concern about their stock and whether they’re at risk from selling it. Others still insist that the DEA and the (broadly pro-pot) legal experts are wrong about this.

In particular, commenters on Kight’s post asked whether there was a “grace period” to clear their existing stock. Unfortunately both legal experts we spoke to were clear on this point.

Rod Kight said, “I have been asked this question a lot. Unfortunately, there is no “grace period”. The DEA’s position is that THCO has been an illegal schedule 1 controlled substance for some time.”

And Shawn Hauser concurred, “These products are illegal, so stores should remove them. There is no grace period.”

The issue might not be as debatable as these sellers hope, but it is probably true that it will have to be argued in court before the matter is settled. With delta-8 THC, for example, stores were raided under the assumption that it was illegal, in part due to a widely-misinterpreted DEA interim final rule

Shawn Hauser said that similar actions are likely for THC-O, “I think given the severe public safety concerns and illegality of these products under federal and a growing number of state laws, we can expect an increase of both federal and state enforcement and increased risk for products liability actions.”

In the case of delta-8, these actions were fought in court and the DEA later clearly expressed that delta-8 THC is not illegal. However, in this case the outcome probably won’t be the same. 

Rod Kight stressed that he doesn’t always agree with the DEA on these issues, but added, “I have been in front of enough courts on various issues to know that a court is most likely to side with the DEA on this issue.”

Consumers Aren’t at Legal Risk, but They Should Still Be Worried About THC-O

In the current climate, it’s unlikely that people purchasing or possessing THC-O will be at particular legal risk. However, the health effects of THC-O are uncertain and there is reason to be concerned about vaping it.

Since THC-O is not found in nature, research into the cannabinoid has been limited thus far. However, a recent study from researchers at the University of California, led by Neal Benowitz, found that the THC-O acetate in the products produced ketene when heated in a vaping device. The vaping-associated lung injury outbreak (EVALI) in 2019 was deemed a result of vitamin E acetate, which produces ketene through the same basic mechanism.

Dr. Erik Paulson from InfiniteCAL explained the underlying chemistry, but also stressed the lack of direct evidence at the moment:

“The suspicion is that the EVALI epidemic was caused by ketene gas as well, due to degradation of Vitamin E acetate. Vitamin E acetate contains the same phenyl acetate structure at its core as THC-O-acetate does, and has also been shown to produce ketene gas upon heating. While there is no direct evidence that the lung damage was caused by ketene (as far as I know), the correlation between EVALI and presence of vitamin E acetate along with the toxicity of ketene is convincing enough to provide concern with vaping THC-O.”

With no direct evidence, and the fact that people have been vaping THC-O for years now with no signs of problems, it’s not as clear-cut as it might seem. However, we spoke to the lead researcher on the study, Neal Benowitz, who explained that:

“Physicians may not identify prior use of a THC-O product in people presenting with lung injury. Or the concentration of THC-O in the vape liquid might not be high enough to generate enough ketene to cause serious lung damage. Or the vaping temperature may not be high enough to convert THC-O to ketene.”

In other words, it’s easy to miss a case and it’s likely that the risk would vary for different products. There are other causes for concern too, with Shawn Hauser also pointing to the lack of regulation around the industry at present:

“Most of the commercial THC-O products on the market are largely unregulated and not subject to the manufacturing, testing, labeling, and other fundamental safety regulations of regulated cannabis products and because there are potentially serious health consequences of vaping this substance, consumers should be aware that these products may pose a serious safety risk.”

In short, consumers are probably safe in a legal sense (since it’s unlikely the law will be enforced this way), but potentially not so safe from a health perspective.

Conclusion: THC-O Has Got to Go

The DEA’s latest announcement isn’t a hard, final “no” on the topic of THC-O, but unlike the confusion around delta-8, this one seems clear-cut. The law makes it clear that THC-O isn’t “hemp” and the DEA agrees with this assessment. Even worse for THC-O acetate, it has the potential to lead to another outbreak of lung illness like vitamin-E acetate did in 2019.  

Rod Kight summed it up perfectly, “I think it is a compound that will harm, rather than help, the hemp industry.”

It might not be what sellers want to hear, but THC-O has got to go.

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