The DEA disclosed in a letter this week that it considers products containing novel cannabinoids such as Delta-9 and Delta-8 THCO, also known as THC acetate ester, to be federally illegal Schedule I substances even if they were sourced from hemp.

The notice was sent to Cannabis industry attorney Rod Kight, who contacted the agency last August to inquire about the control status of THCO products under the Controlled Substances Act. After a follow-up email on February 7, the agency responded to Kight on Monday, stating it does not consider THC acetate ester products to be legal under the 2018 Farm Bill, which federally legalized hemp, because the novel cannabinoids can only be made via synthetic means.

“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.” — DEA, in the letter to attorney Rob Kight

In a blog post about the development, Kight said the letter confirms his concerns about “the proliferation of THC acetate ester,” which can be easily found in products sold via online marketplaces alongside other cannabinoids such as CBD and delta-8 THC.

Kight notes that delta-8 THC “falls within the definition of ‘hemp’ because it is a ‘derivative’ as set forth in the 2018 Farm Bill.”

“For this reason, many people assume that THCO also meets the definition of a hemp derivative since it is typically created from a starter cannabinoid. This is not correct,” Kight wrote. “D8 is distinguishable from THCO because the hemp plant naturally produces D8; however, it does not produce THCO. From this perspective … THCO is properly seen as synthetic THC, not ‘hemp.’”

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