A recent supreme court decision that weakened the power of US government regulatory agencies such as the Drug Enforcement Administration (DEA) has added additional confusion to America’s already chaotic cannabis law.
This month, a federal court was able to overrule the DEA on what qualifies as legal hemp, in part because of a supreme court decision that nullified the Chevron doctrine, which once directed courts to defer to the expertise of federal agencies. But now the reverse will apply and courts may have the final say over even highly technical regulations.
“It’s a mess,” said Peter Grinspoon, a physician and Harvard Medical School instructor who wrote Seeing Through the Smoke on medical cannabis. “When you have the DEA saying one thing, you have the farm bill saying another thing, you have the court swinging in one way or the other. It just goes to show that these hemp derived products need to be regulated in a sensible manner.”
The case this month, Anderson v Diamondback Investment Group was heard by the fourth circuit court of appeals and looked into whether an employee could be legally terminated for taking certain cannabis-derived products, including THC-O, a psychoactive substance synthesized from cannabis extract.
The ambiguity in this case lay in whether or not THC-O should be legally defined as a synthetic cannabinoid or hemp.
Synthetic cannabinoids are federally illegal schedule 1 substances. But a loophole in the 2018 farm bill changed the definition of legal hemp to include plant-derived products with less than .3% delta 9 THC – the most popular and well-known component of cannabis.
Since then, a multibillion-dollar unregulated market of all kinds of hemp products has emerged. Many states have since passed laws to try and rein in the proliferation of hemp products, many of which are intoxicating and easy to access for minors, among other problems.
The Diamondback opinion uses the 2022 case AK Futures v Boyd Street Distro as precedent. In that case, the ninth circuit court of appeals similarly disputed the DEA’s assertion that Delta-8 THC is a schedule 1 substance. But unlike THC-O, Delta-8 THC can be found naturally in the cannabis plant, just in small quantities. Even since the AK Futures decision, the DEA has asserted that THC-O does “not occur naturally in the cannabis plant and can only be obtained synthetically, and therefore do not fall under the definition of hemp”.
The Diamondback opinion argues that THC-O is unambiguously legal under the farm bill, but also adds “even if it were ambiguous, we needn’t defer to the [DEA’s] interpretation” – a marked change in tack since the Chevron doctrine was undermined.
This development might comfort some cannabis advocates, who worried that the supreme court decision might threaten cannabis rescheduling and the possibility of federal legalization.
Michael McQueeny, an attorney who works with cannabis law, says these court decisions are turning what were once considered “loopholes” in the farm bill into codified law. “The impact of this decision will likely continue to encourage states to step into the void left from an absence of federal action,” McQueeny said.
While Grinspoon firmly believes we need more consistent legalization, he also says the DEA should not get deference when it comes to cannabis decisions.
“The DEA has done a terrible job with anything cannabis or cannabinoid related since their very inception. They haven’t understood it. They’ve been persecuting medical patients, and they just don’t even understand or believe in the potential,” said Grinspoon.
So what is THC-O exactly? Scientists barely know yet. As of this writing, there were only seven studies looking into THC-O on PubMed, compared to over 12,0000 on CBD, for example.
“It gets people high, might have vast therapeutic benefits, might be dangerous, probably not so dangerous, because it’s close to regular THC, but it needs to be studied, and it needs to be regulated,” said Grinspoon.
Daniel Kruger, a research scientist who studies cannabis with the University of Michigan, is the author of two of those seven studies. He said we need a lot more research on different cannabinoids “to fulfill the true mission of public health. It’s not like alcohol, where you just have ethyl alcohol, that’s the only active ingredient. There’s hundreds of different potentially psychoactive compounds in cannabis.”
Kruger is concerned about THC-O in particular because “it has an acetate group on it”. Vaporizer cartridges that contain acetates are of particular public health concern, because vapes containing vitamin E acetate killed nearly 70 people, and sent thousands to the hospital with a lung condition called EVALI.
In one study, Kruger and his colleagues found that THC-O could pose a risk to lung health if vaped at too high a temperature.
In another, they used survey data to find out if there was any substance to rumors and marketing claims that THC-O can have a psychedelic effect. Instead, Kruger found that the only perceivable difference between THC and THC-O is that the latter takes longer to hit.
“We actually expected to find more differences,” he said. “It’s the gap between the hype and the reality that, you know, that we uncovered.”
Griffen Thorne, a lawyer who works with cannabis law, thinks that all these technicalities about what is and is not hemp will be irrelevant in the near future.
“I think it’s really meaningless, because federal law is probably going to change within the next few months,” he said. An updated version of the farm bill typically passes every five to six years.
Proposed language for the new farm bill excludes products with “similar effects on humans or animals” as THC from the legal definition of hemp, as well as any products that are intoxicating.
“So once that happens, it doesn’t really matter what the DEA interprets. You know, federal law will change, and then we’re back to square one. There won’t be any ambiguity anymore. They’ll be illegal.”
On the other hand, more than half of states already defy federal law on cannabis.
