Is Delta 8 Illegal? DEA Official Says 'Yes'

Although the U.S. Drug Enforcement Administration (DEA) has not formally ruled on delta-8-THC, an email written by a DEA official suggests the agency considers it a controlled substance.

Delta-8-tetrahydrocannabinol, AKA delta-8-THC, is a psychoactive compound derived from the cannabis plant. However, the plant does not contain significant amounts of delta-8-THC, so manufacturers extract the compound, then isolate and purify it using various chemical processes.

Delta-8 comes in several forms, including gummies, oils, and vaping liquids. And these products are currently available in 29 states and Washington DC. However, the FDA has not evaluated or approved delta 8.

Because this substance occurs naturally in the cannabis plant, it falls under the 2018 Farm Bill's definition of hemp.

Specifically, the Farm Bill removed hemp — defined as cannabis — and derivatives of cannabis with extremely low concentrations of THC from the definition of marijuana in the Controlled Substances Act (CSA). However, these derivatives must contain 0.3% or less THC on a dry-weight basis.

But is delta 8 illegal?

In a 2021 response letter to the Alabama Board of Pharmacy, the DEA's Drug & Chemical Evaluation Section Chief Terrence Boos clarified the agency's stance on delta-8-THC.

Boos wrote, "THC is a tetrahydrocannabinol substance contained in the plant Cannabis sativa L. and also can be produced synthetically from non-cannabis materials. THC synthetically produced from non-cannabis materials is controlled under the CSA as a tetrahydrocannabinol."

So, only synthetically produced delta-8-THC would be considered illegal.

However, according to an article posted on August 11 in the Substack On Drugs by attorney Shane Pennington, the DEA may consider all manufactured delta-8-THC illegal.

Pennington says that while reviewing recent lawsuits challenging state-level bans on delta-8-THC, he found an email written by Boos in 2021.

Boos wrote, "Delta-8-THC is a constituent of Cannabis sativa L. and the tetrahydrocannabinol is found in small quantities in the plant. If the substance is extracted from the plant [it] is subject to treatment under the Agricultural Improvement Act (AIA) and exempted if the material has less than 0.3% THC."

"Arriving at delta-8-THC by a chemical reaction starting from CBD makes the delta-8-THC synthetic and therefore, not exempted by the AIA. Any quantity of delta-8-THC obtained by chemical means is a controlled substance," Boos concluded.

According to Michigan's Cannabis Regulatory Agency, most commercially available delta-8 is synthesized through a conversion process that uses various chemicals to convert hemp-derived CBD into delta-8.

Pennigton says Boos' statement is authoritative and could add weight to lawsuits challenging bans on delta-8-THC.

Still, it's unknown if the DEA plans to formally define whether delta-8 is considered a naturally derived substance or created by chemical means. So, until more details emerge, delta-8 will likely remain available in states that allow it.