The debate over intoxicating hemp-derived cannabinoids has intensified in the last few years. Created by chemically altering CBD, compounds like HHC, THC-P, and delta-8 are popular in prohibition states and are marketed as legal ways to get high. However, some have questioned the safety of these products, causing lawmakers and government officials to examine whether they’re lawful—and a recent court ruling suggests they might be.
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The Farm Bill states any cannabis with less than 0.3 percent THC is federally compliant hemp; anything above that threshold is marijuana, a Schedule I controlled substance. Earlier this week, the 4th Circuit Court of Appeals determined that THC-O is considered federally legal hemp according to the 2018 Farm Bill.
The ruling stems from an employment case where a woman was fired after a drug test came back positive for marijuana. She argued she was consuming THC-O and was unfairly terminated. Her employer justified the firing with a 2023 Drug Enforcement Agency (DEA) statement.
The statement in question was a response to an inquiry from attorney Rod Kight on the legality of THC-O. The DEA said that THC-O is an illegal controlled substance due to the fact it’s a chemically synthesized molecule.
The appeals court dismissed that notion, instead agreeing with an earlier federal court ruling on intoxicating hemp. In that case, the Ninth Circuit Court of Appeals confirmed the Farm Bill’s definition of legal hemp includes “all derivatives, extracts, [and] cannabinoids” that contain less than 0.3 percent THC. Since compounds like THC-O are not technically THC, they’re lawful under the current federal standard.
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“Because the statute is subject to this other reasonable (and, we think, better,) interpretation, we reject [the employer’s] contention that the DEA’s interim final rule or letter mandates a finding that THC-O is illegal,” the 4th Circuit panel wrote in their ruling this week.
Kight said the decision is “groundbreaking and unexpected” on his blog, saying it could have major implications. He specifically called out THC-A, a precursor to THC that has seen explosive growth in the hemp market. The DEA attempted to challenge the legality of THC-A, but as Kight points out, these federal court rulings would likely apply to the cannabinoid if it were to be challenged further.
“The court killed the DEA’s buzz when it comes to its interpretations of the Farm Bill,” Kight wrote.
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While the ruling seems like a major win for the intoxicating hemp market, the jury’s still out on whether the decisions will stand. The Farm Bill is currently up for renewal, and a proposed amendment would potentially redefine hemp on the federal level—essentially making “90-95 percent” of products on the market illegal.
It remains to be seen whether the Farm Bill will pass in its current state (or make it to the Congress floor at all). Until then, hemp companies will likely celebrate the federal court ruling and continue with business as usual.
