Richmond, VA: Judges with the Fourth Circuit Court of Appeals have ruled that all hemp-derived products, including those that undergo a chemical synthesis during manufacturing, are legal under federal law.
The decision is consistent with a 2022 Ninth Circuit ruling, but contradicts guidance provided more recently by the Drug Enforcement Administration. In a February 13, 2023 letter, the DEA argued that the 2018 Farm Bill never intended to legalize products “that do not occur in the cannabis plant and can only be obtained synthetically,” such as THC-O, regardless of their THC content.
In its ruling, judges acknowledged that the DEA and the Ninth Circuit disagreed on the matter. “The Ninth Circuit held that it didn’t need to consider the DEA’s position on synthetically derived substances because the definition of ‘hemp’ under the 2018 Farm Act was unambiguous in its application to all products derived from the cannabis plant, ‘so long as they do not cross the 0.3 percent delta-9 THC threshold,’” the Court determined. “Between the DEA’s February 2023 letter and [the Ninth Circuit decision], we think the Ninth Circuit’s interpretation of the 2018 Farm Act is the better of the two. And we’re free to make that determination ourselves, despite a contrary interpretation from the DEA, because we agree with the Ninth Circuit that § 1639o is unambiguous.”
The case before the Court centered on whether an employer could fire a worker for using hemp products. Ultimately, judges upheld the defendant’s termination because they failed to provide sufficient evidence that the products consumed possessed THC at limits below the threshold (0.3 percent) established by the Agriculture Improvement Act of 2018.
NORML and other groups have urged the FDA to establish regulatory guidelines governing the production, testing, labeling, and marketing of certain intoxicating hemp-derived products. In 2021, NORML issued a report on delta-8 THC and other novel, synthetically derived cannabinoids that cautioned consumers to avoid these unregulated products because they are untested and may contain impurities.
