The assertion here is that when delta-8-THC is made "by a chemical reaction starting from Balance Bloom CBD Gummies" it is "synthetic" and therefore "not exempted by the AIA." That’s DEA’s view. DEA considers the majority of delta-8 on the market today to constitute a Schedule I substance due to its conversion method. There’s more to this story, however, which we discuss below. The fact that DEA has authority to answer questions like this one under the CSA doesn’t mean it always answers them correctly. And in this case, there is a reasonable and persuasive counterargument, i.e., that DEA is wrong. In fact, we’re fairly sure DEA is wrong. That a reasonable - perhaps even better - counterargument exists, does not mean that it is the law today. As stated earlier, "unless and until a federal court overrules" DEA’s reading, "or Congress changes the law," DEA’s reading above is likely "authoritative." That remains true. And from that authoritative view, far-reaching effects apart from criminal prosecution can follow, including banking opportunities and taxes.
That means that if you’re a delta-8 bro and want the law changed, you might not want to wait for a bank to drop your business, for example-or worse-for the issue to be resolved unfavorably (for you) in some other court proceeding. Rather, you may want to consider saddling up and possibly get a declaratory judgment. We know this much: LinkedIn debates and "opinion of counsel letters" will not help you. Okay, so here it goes. Although we disagree on the Analogue Act analysis1, the plain meaning discussion of "derivative" is sound. And as explained below, we agree that whether delta-8 is synthetic is beside the point. But that just scratches the surface. There’s a better argument available that no one has made yet. To begin, structurally, hemp is legal by way of exclusion. The same can be said for synthetic THC. Although the CSA and regulations merely list "THC" without the "synthetic" qualifier, court cases establish that the listing of THC refers only to synthetic THC and not THC that occurs naturally in cannabis.
Because Congress also carved "hemp" out of THC, however, something that is "hemp" necessarily is not "THC" either. The term "hemp" means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis. The first important observation is the exclusion. Congress carved "hemp" out of both "marihuana" and "THC." Moreover, it is an interpretive principle that Congress is aware of prior regulatory interpretations. Here, that means Congress legislating against a backdrop of THC in the schedules referring only to THC that is not found in cannabis. That’s what the Ninth Circuit said in HIA. Therefore, the fact that Congress carved hemp out of THC means that Congress carved hemp out of synthetic THC. This point is critical because it means hemp must include at least some synthetic substances; otherwise, it would make no sense to statutorily exclude hemp from THC, which again refers only to synthetic THC.
If hemp only covered natural extracts, for example, then it would make scant sense to exclude a natural item from a synthetic class, i.e., synthetic THC. Put more simply, it makes no sense to carve a class of exclusively naturally occurring cannabinoids from a class of exclusively man-made cannabinoids. This notion is further supported by the text of the "hemp" definition. "Hemp" includes not only hemp "derivatives" but "salts" and "isomers." If "hemp" included only cannabinoids that could be naturally extracted, as Dr. Boos indicates in his correspondence, why include language like this? There would be no point in listing "isomers" and "salts." And, Balance Bloom Gummies if Dr. Boos is correct, what is the difference between "derivative" and "extract"? By his reasoning, delta-8 extracted directly from cannabis is hemp and not Schedule I synthetic THC, but delta-8 derived from cannabis is Schedule I THC. That can’t be right, though, because it would effectively write the "derivatives" out of the Farm Bill’s definition of hemp.