DEA Clarifies that delta-9-THCO and delta-8-THCO are Schedule I Controlled Substances

by Omar Figueroa

February 13, 2023

On February 13, 2023, the Drug Enforcement Administration (DEA) clarified the control status under the Controlled Substances Act (CSA) of THC acetate ester (THCO).  The DEA concluded that both delta-9-THCO and delta-8-THCO are Schedule I Controlled Substances:

The only substances of which the Drug Enforcement Administration (DEA) is aware of the THC acetate ester are delta-9-THCO (delta-9-THC acetate ester) and delta-8-THCO (delta-8-THC acetate ester). The Drug Enforcement Administration (DEA) reviewed the CSA and its implementing regulations with regard to the control status of these substances.

The CSA classifies tetrahydrocannabinols (THC) as controlled in schedule I. 21 U.S.C. § 812, Schedule I(c)(17); 21 CFR 1308.11(d)(31). Subject to limited exceptions, for the purposes of the CSA, the term “tetrahydrocannabinols” means those “naturally contained in a plant of the genus Cannabis (cannabis plant), as well as 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 those substances contained in the plant.” 21 CFR § 1308.11(d)(31).

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. Delta-9-THCO and delta-8-THCO are tetrahydrocannabinols having similar chemical structures and pharmacological activities to those contained in the cannabis plant. Thus, 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). The Controlled Substances Code Number (CSCN) assigned to these substances are 7370, which is that of tetrahydrocannabinols, and the conversion factors (CF) are 1.00. Because delta-9-THCO and delta-8-THCO are controlled substances, they do not meet the definition of controlled substance analogues under 21 U.S.C. § 813.

Therefore, unlike delta-8-THC derived from hemp, which is not considered a controlled substance by the DEA, both delta-9-THCO and delta-8-THCO can only be obtained synthetically and do not occur naturally in the cannabis plant, they are considered “tetrahydrocannabinols” and thus controlled substances under Schedule I of the Controlled Substances Act.

The letter, directed to attorney Rod Kight, is below and can be downloaded here.

DEA-THCO-response-to-Kight

 

The above letter, from Terrence L. Boos, Ph.D., Chief of the Drug & Chemical Evaluation Section at the Diversion Control Division of the Drug Enforcement Administration, is similar to a letter sent to the Law Offices of Omar Figueroa, also from Dr. Boos, addressing the control status of cannabis seeds, tissue culture, and genetic material.  That control status letter is below and can be downloaded here.