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July 12, 2023

Unmasking the Cannabis Conundrum: Navigating the Legal Pitfalls of THCA, Delta-8 THC, Delta-9 THC, Delta-10 THC, THC-O, and HHC Sales

The Federal Trade Commission (FTC) and the Food and Drug Administration (FDA) have recently sent out cease and desist letters to sellers of delta-8 tetrahydrocannabinol (THC). The DEA has outright declared that THC-O is a synthetic cannabinoid, yet sales of these illegal products persist.

Various brick-and-mortar and online stores have been advertising the sale of tetrahydrocannabinolic acid (THCA), delta-8 THC, delta-9 THC, delta-10 THC, THC-O, and hexahydrocannabinol (HHC), claiming their legality under the 2018 Farm Bill, which legalized hemp with a delta-9 THC concentration of not more than 0.3 percent on a dry weight basis. However, it is essential to understand the science behind these substances to avoid penalties for the unlicensed sale of cannabis.

Delta-9 THC is the psychoactive version of THCA, the naturally occurring form of THC in cannabis plants. THCA itself is not psychoactive; however, when heated, THCA is converted into delta-9 THC. While the Farm Bill may seem to legalize cannabis nationwide as long as its delta-9 THC concentration remains below 0.3 percent, the intention was not to grant such broad legality. The United States Department of Agriculture (USDA), which is responsible for federal hemp regulations, clarified that compliance with the hemp program is determined by total THC not just delta-9 THC. Total THC considers the decarboxylation process and calculates the total amount of delta-9 THC in a plant by factoring in the molecular weight of THCA and adjusting for the loss of the acid group. 

Consequently, the possession of THCA products without authorization from the DEA is federally illegal. Additionally, unlicensed sales of THCA within New York State are illegal.

Furthermore, businesses have emerged claiming the sale of delta-9 THC products by extracting delta-9 THC from federally legal hemp plants and ensuring that the delta-9 THC concentration remains below 0.3 percent of the dry weight of the product avoids federal illegality and therefore can be sold legally. However, the extraction process likely exceeds the 0.3 percent threshold at some point, rendering the product a controlled substance and making it federally illegal for sale—especially in interstate commerce.

Delta-8 THC, delta-10 THC, and HHC occur naturally in cannabis plants but in such small amounts that they are usually undetectable on a certificate of analysis. As a result, these cannabinoids are often synthesized by converting CBD into delta-8 or delta-10 THC, making them “synthetic cannabinoids,” which are regulated under the Controlled Substances Act (CSA). The DEA has confirmed that synthetic cannabinoids, including those chemically identical to natural cannabinoids, are controlled substances. Additionally, THC-O, which is wholly synthesized, falls under the CSA and New York State law as a synthetic cannabinoid, making its sale illegal.

In conclusion, without an adult-use cannabis license, it is illegal to sell THCA, delta-8 THC, delta-9 THC, and delta-10 THC in New York State. Moreover, the sale of THC-O and HHC is strictly illegal, as they are synthetic cannabinoids, which are illegal under both the CSA and New York State law.

If you have any questions regarding the content of this alert, please contact Jason Klimek, Cannabis Team co-leader, at jklimek@barclaydamon.com, or another member of the firm’s Cannabis Team. 
 

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