Counterpoint: Hemp-Derived CBD->Delta-8 is Not Controlled

A Deeper Legal Dive

The last essay discussed this:

The assertion here is that when delta-8-THC is made “by a chemical reaction starting from CBD” 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. That’s a fact.

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. The counterpoint.

Our argument builds on Rod Kight’s analysis here + here. 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.