A U.S. appeals court has ruled that the hemp-derived cannabinoid THC-O-acetate is federally legal under the 2018 Farm Bill, rejecting the position of the Drug Enforcement Administration (DEA) that the chemical is a Schedule I controlled substance.
The opinion, published on Wednesday by the U.S. Court of Appeals for the Fourth Circuit, comes in an employment case that rests in part on the federal legality of the cannabinoid. In it, the majority of a three-judge panel ruled that DEA’s interpretation of what qualifies as illegal marijuana is overbroad and does not apply to THC-O, which can be synthesized from other cannabinoids found in legal hemp.
In rejecting DEA’s 2023 interpretation of the law, the Fourth Circuit panel sided with an earlier opinion out of the Ninth Circuit Court of Appeals that ruled the Farm Bill’s legalization of hemp removed restrictions on a wide range of cannabinoids, for example delta-8 THC.
“Because the statute is subject to this other reasonable (and, we think, better,) interpretation,” says the new Fourth Circuit opinion, “we reject [the employer’s] contention that the DEA’s interim final rule or letter mandates a finding that THC-O is illegal.”
“Between the DEA’s February 2023 letter and [the Ninth Circuit opinion], we think the Ninth Circuit’s interpretation of the 2018 Farm Act is the better of the two,” judges wrote. “And we’re free to make that determination ourselves, despite a contrary interpretation from the DEA, because we agree with the Ninth Circuit that [the federal definition of hemp] is unambiguous.”
Specifically, the opinion says, “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.’”
To further justify its reasoning, the court cited a Supreme Court decision from this year that overturned the so-called Chevron doctrine of providing deference to federal agencies’ interpretations of ambiguous statutes, writing that it means judges need not defer to DEA’s own interpretation of the law.
The opinion says of the federal hemp definition: “Even if it were ambiguous, we needn’t defer to the agency’s interpretation, see Loper Bright Enters. v. Raimondo.”
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