DISCLAIMER: THIS IS MY PERSONAL OPINION. I AM NOT A LAWYER. PLEASE GET YOUR OWN LEGAL ADVICE
Everyone here doesn’t understand the way the DEA & other regulatory authorities interact with Congress. Essentially, the DEA has the authority to implement specific rules & guidelines with the purpose of clarifying the the laws written and ratified by Congress & the Senate.
AIA 2018 (Farm Bill) says the following:
“(1) HEMP.—The term ‘hemp’ means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”
This is the definition of hemp that the DEA cannot change. Please note that isomers of hemp are specifically named. Also note the specific caveat of “whether growing or not”.
Also in the Farm Bill:
“SEC. 297C. AUTHORITY TO ISSUE REGULATIONS AND GUIDELINES.
“The Secretary shall have sole authority to issue Federal regulations and guidelines that relate to the production of hemp, including Federal regulations and guidelines that relate to the implementation of section 297B.”.
“(3) SECRETARY.—The term ‘Secretary’ means the Secretary of Agriculture."
Therefore, The DEA cannot issue regulations that directly conflict with the legislation above.
Next, here is the DEA’s new guidelines that are causing people to believe isomers of Delta8 are illegal:
“The AIA does not impact the control status of synthetically derived
tetrahydrocannabinols (for Controlled Substance Code Number 7370) because the
statutory definition of “hemp” is limited to materials that are derived from the plant
Cannabis sativa L. For synthetically derived tetrahydrocannabinols, the concentration of
9-THC is not a determining factor in whether the material is a controlled substance. All
synthetically derived tetrahydrocannabinols remain schedule I controlled substances.”
This statement is quite clear. The AIA (2018 Farm Bill) does not impact the control status of synthetically derived THCs, because of the statutory definition of “hemp” is limited to materials that are derived from the plant cannabis sativa L.
This statement is key. In order to properly interpret this rule, you must look back to the AIA’s definition of hemp which includes all derivatives, isomers, etc, whether growing or not. Essentially, this means that synthetically derived THCs that are not derived from hemp are illegal.
As stated by the DEA’s IFR, the intention of this is to clarify current regulations, not implement new regulations (which is why the implemented immediately and skipped the comment period).
Taking the above into account, this essentially means that for any synthetically derived THC that is does not fall under the AIA’s definition of hemp is, and has always been, illegal. This means that isomers of legal hemp, such as Delta 8 THC, are legal as long as the contain 0.3% Delta-9 THC or less.