DEA Reaffirms Synthetic THC Compounds Are Schedule I Controlled Substances

The Drug Enforcement Administration’s (“DEA’s”) February 13th determination that THC acetate ester (“THCO”) is a schedule I controlled substance under the federal Controlled Substances Act (“CSA”) has received a good amount of attention in the cannabis press.  That determination, however, was neither a stretch nor a surprise to Rod Kight, the North Carolina attorney who posed the question to DEA, and to those who have recently analyzed whether certain cannabinoids are controlled, and if so, how.

THC acetate esters are different than delta-9-THC, the psychoactive compound found naturally in the cannabis plant.  Terrence L. Boos, Ph.D., Chief of the DEA Diversion Control Division’s Drug and Chemical Evaluation Section, responding to Kight, observed that the only THC acetate esters his agency is aware of are delta-9-THCO (“delta-9-THC acetate ester”) and delta-8-THCO (“delta-8-THC acetate ester”).  Letter from Terrence L. Boos, DEA, to Rod Kight (Feb. 13, 2023).  Dr. Boos noted that under 21 C.F.R. § 1308.11(d)(31) tetrahydrocannabinols (“THC”), controlled as schedule I substances, are “naturally contained” in the cannabis plant, but include “synthetic equivalents of the substances contained in the cannabis plant and/or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity” to substances in the plant.

Dr. Boos explained that delta-9-THCO and delta-8-THCO have similar chemical structures and pharmacological activities as compounds in the cannabis plant so they fall within the definition of THC.  But, he noted, because neither delta-9-THCO nor delta-8-THCO occur naturally in the cannabis plant, they can only be obtained synthetically.  And because they do not occur naturally within the cannabis plant, they are not hemp and not excluded from control by the Agricultural Improvement Act of 2018 (“the Farm Bill”).  Dr. Boos’ determination is consistent with DEA’s August 21, 2020, interim final rule implementing the Farm Bill, noting that statute limited non-controlled THC to compounds within the statutory definition of “hemp,” that is only materials derived from the cannabis plant and did not impact the schedule I control of synthetically-derived THC.  Implementation of the Agriculture Improvement Act of 2018, 85 Fed. Reg. 51639, 51641 (Aug. 21, 2020).  (He also noted that because delta-9-THCO and delta-8-THCO are controlled substances, they do not meet the CSA’s definition of a “controlled substance analogue.”)

DEA’s determination that delta-9-THCO and delta-8-THCO are schedule I controlled substances reaffirms that any synthetic compound that does not occur naturally within the cannabis plant but which has similar chemical structure and pharmacological activities as THC, is a schedule I controlled substance.