“Tetrahydrocannabinols does not include any material, compound, mixture, or preparation that falls within the definition of hemp set forth in [the 2018 Farm Bill].”
The Rule reiterates these changes were already mandated under the 2018 Farm Bill: “DEA’s regulatory authority over any plant with less than 0.3% THC content on a dry weight basis, and any of the plant’s derivatives under the 0.3% THC content limit, is removed as a result.”
What Does the DEA Rule Say?
We don’t believe the USDA intended to create a mechanism for people to legally get high, but the focus on hemp has been the Delta-9 THC concentration, because of its known psychotropic effects. Delta-8 THC may have gone under the radar, but perhaps not. The DEA doesn’t schedule every substance that produces mind-altering effects, such as kratom.
It is for these reasons we do not believe the DEA Rule altered the legality of hemp-derived Delta-8 THC. In this Politico article, a spokesperson for the DEA confirmed the purpose of the rule was to ensure its regulations were in line with the 2018 Farm Bill and that “raiding CBD manufactures isn’t among the agency’s priorities,” especially in light of the current opioid crisis, resurgence of meth and prevention of cartel activity, all of which are alarming causes for death. However, that doesn’t mean the DEA isn’t trying wrangle it back in or isn’t looking for someone to make an example out of. Being the example, even if the end result is a win, would likely be a lengthy, expensive and potentially traumatizing experience. Proceed accordingly.
In Hemp Indus. Ass’n v. DEA (357 F.3d 1012, 2004 U.S. App. LEXIS 1846), a well-known case from 2004 regarding DEA’s treatment of THC in hemp, the court concluded the DEA could not regulate unscheduled drugs without following proper procedures to do so (a great summary of that case can be found here). The DEA Rule from Friday repeatedly states it is not changing any laws, so even if it wants to come down on hemp-derived Delta-8 THC and re-schedule it, this Rule is not the appropriate avenue to do so.
What is Delta-8 THC and is it legal?
The Postal Inspection Service had [redacted] ANP sites to process suspected packages from the western U.S. During July 2018, the Postal Inspection Service established the [redacted] to serve as a central processing location for the mailing of suspected marijuana packages from areas without an ANP site. In fiscal year (FY) 2019, the Postal Inspection Service processed 54,877 packages suspected of containing marijuana at both the [redacted] and ANP sites.
Our objective was to determine whether the U.S. Postal Inspection Service has efficient and effective controls to manage the Administrative Non-Mailability Protocol (ANP) program.
U.S. Postal Inspection Service Handling of Suspected Marijuana Packages
Postal inspectors are federal law enforcement officers responsible for enforcing laws that defend the nation’s mail system from illegal or dangerous use. In 2016, the Postal Inspection Service implemented the ANP program, which is an administrative procedure used to detain, document, and process mail packages that are reasonably suspected of containing marijuana from the mailstream.
Unlike in criminal investigations, the ANP program does not require postal inspectors to obtain search warrants to open detained packages. Rather, they request consent from mailers or addressees to open detained packages. If there is no response after 21 days, packages are declared abandoned and can be opened. When identified as non-mailable items, their contents are seized and disposed and mailable items are returned to the original addressees. Due to this process, the Postal Inspection Service has determined that abandoned packages are not used as evidence in criminal investigations; however, information about the packages, such as an address, may be used to support new or ongoing criminal investigations. This program was established primarily to remove marijuana from the mailstream.
Opportunities exist for the Postal Inspection Service to enhance management of the ANP program. Specifically, in FY 2019 we found: