On September 4, 2024 the United States Court of Appeals for the Fourth Circuit issued a groundbreaking decision regarding the lawful status of THC-O. This decision found that THC-O meets the legal definition of hemp under the 2018 Farm Bill and is not a controlled substance, despite the DEA’s assertion to the contrary that it is a controlled substance because it is synthetic.
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The court stated: “Rather than originating from organic matter- much like the hemp-derived cannabinoids at issue-, synthetic cannabinoids are just that: compounds manufactured entirely out of synthetic materials… [W]e reject Diamondback’s contention that the DEA’s interim final rule or letter mandates a finding that THC-O is illegal.”
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The letter referenced above was issued to my friend and colleague Rod Kight in 2023 after he petitioned the DEA asking about the controlled status of THC-O. The response, which sent shockwaves through the hemp industry and created a tremendous amount of animosity toward Kight, was based solely on the DEA’s interpretation of the Farm Bill and not rooted in statutory authority.Â
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The 4th Circuit Court of Appeals noted that the DEA’s interpretations of the Farm Bill are not subject to deference despite coming from a federal agency, and that a plain reading of the text of the federal law at issue, in this case the 2018 Farm Bill, is controlling. In reaching this conclusion, the 4th Circuit Court of Appeals cited the AK Futures decision issued by the 9th Circuit Court of Appeals, where it found that Delta-8 THC is lawful under federal law provided it comes from hemp and does not exceed 0.3% delta-9 THC by dry weight.
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This is a landmark decision for the hemp industry and it should be celebrated by hemp business owners and industry participants alike.Â
