Federal Appeals Court Rules THC-O Legal under Agricultural Law

According to a report by Vaping 360 on September 10th, the U.S. Federal Appeals Court ruled that THC-O is a legal substance and meets the definition of a cannabinoid under the 2018 Farm Bill. This decision overturned the previous stance of the Drug Enforcement Agency (DEA) that THC-O was an illegal synthetic cannabinoid not protected by the Farm Bill.

On September 4th, a panel of three judges from the Fourth Circuit Court of Appeals overturned a lower court ruling in a case involving an employee who was fired for failing a drug test not authorized by the employer.

Cannabis lawyer Rod Kight described the decision as "groundbreaking and unexpected.

Kate suggested that this ruling may also put a damper on the DEA's efforts to crack down on THCA producers.

THC-O acetate is the acetic ester form of tetrahydrocannabinol (THC) that acts as a stimulant for cannabis and many cannabis products.

In February 2023, the DEA stated in a letter that THC-O is a federally illegal Schedule I drug because it cannot naturally occur in legal cannabis plants. THC-O is derived from CBD extracted from cannabis using chemical catalysts, similar to delta 8 THC, but delta 8 THC can also be found in cannabis plants. The DEA believes that manufacturers of THC-O products must comply with federal enforcement, including seizure and prosecution.

However, the Fourth Circuit Court of Appeals disagreed with this view and believed that the Ninth Circuit Court's ruling on delta 8 THC in May 2022 was more reasonable in defining legal marijuana. The court stated that marijuana derivatives are not illegal drugs unless they contain 0.3% or more of delta 9 THC. This is the definition used in the Agricultural Act and includes all "marijuana derivatives, extracts, and cannabinoids.

Between the DEA's letter in February 2023 and the Ninth Circuit Court of Appeals ruling, we believe the Ninth Circuit's interpretation of the 2018 Farm Bill is more appropriate. We can make this judgment ourselves, even though the DEA has a different interpretation, because we agree with the Ninth Circuit that the definition of hemp in the Farm Bill is clear...even if it is ambiguous, we do not need to rely on the DEA's interpretation.

The court cited the recent Supreme Court decision in Loper v. Bright, which put an end to the so-called Chevron principle. The court pointed out that when comparing THC-O (and other cannabis-derived cannabinoids) to truly synthetic cannabinoids like "Spice,

Synthetic THC is a compound made entirely from synthetic materials. Because there are other reasonable (and in our opinion better) interpretations of the regulations, we reject the defendant's assertion that the DEA's interim final rule or letter requires the classification of THC-O as illegal.