Is It Legal, or Not? What to Make of All These DEA “Position” Letters

By Vince Sliwoski, Managing Partner of Harris Śliwowski

The Drug Enforcement Administration (DEA) seems happy to respond to public and private parties inquiring about the control status of various substances. DEA answers some of these inquiries more quickly than others, and the response letters are usually short and to the point. The letters typically come from the desk of Terrence L. Boos, Ph.D., Chief of the Drug & Chemical Evaluation Section. They often contain helpful diagrams of the chemical structures at issue, just above the signature blocks.

Last month, my colleague Griffen Thorne touched on one of these letters, which covered THCA. The title of that article was “Bad News for Intoxicating Hemp Products.” As you might infer, the letter concluded that hemp-derived THCA is a schedule I controlled substance, notwithstanding purported “loopholes” of the 2018 Farm Bill.

This blog post will not analyze whether DEA got it right or wrong in any of the recent letters. Instead, I’m going to talk about what the letters mean more generally, and how we should “weight” them. For context, below is a list of the letters I’m talking about, going back three years or so:

Letter re: the legality of delta-8 THC derived from CBD (August 11, 2021) Letter re: the legality of seeds, tissue culture and genetic material of cannabis sativa L. (January 6, 2022) Letter re: the legality of seeds, tissue culture and generic material of cannabis sativa L. (December 20, 2022) Letter re: the control status of delta-8 and -9 THCO (February 13, 2023) Letter re: the control status of delta-8 THC, HHC, delta-9 THC, THCA and H4-CBD (June 9, 2023) Letter re: the control status of “magic mushroom” spores (January 2, 2024) Letter re: the control status of HHC (April 3, 2024) Letter re: the control status of delta-9 THCA (May 13, 2024)

I may have forgotten or missed one or two recent letters. If that’s the case, feel free to drop me a line, or give me the business in the comments.

Anyway, the question for today is: “how much weight should we ascribe to these position letters from DEA? What are the legal ramifications of DEA writing these things?” The simplest answer I can give is that DEA’s views should be given significant weight. Relatively speaking, DEA’s pronouncements are a lot more authoritative than the pronouncements of someone like me, but less authoritative than those of a court.

To illustrate:

On February 16, 2024, I opined that THCA is not legal under federal law. What I think doesn’t matter, really, because I’m not in charge of anything. I’m just a lawyer who has studied these things. Other professional people (including friends of my law firm) have reached the opposite conclusion on THCA. Doesn’t matter. On May 13, 2024, DEA opined that THCA is not legal under federal law. This is the same conclusion I had reached a few months prior. It doesn’t mean I was “right,” though. This is because DEA could also be wrong (and has been wrong before). Same with yours truly. Someday, DEA might arrest someone for selling THCA products, in accordance with DEA’s position set forth in the May 13, 2024 letter. That person could fight back in court, arguing that DEA is wrong to consider THCA products controlled. A court would probably consider DEA’s views authoritative, to an extent, and grant those views some deference. It’s still possible that a court could rule against DEA, however. It wouldn’t be the first time.

A sort of narrower, more academic question might be: “are these DEA letters more or less authoritative than ‘interpretive rules’ by DEA on similar questions?” (To give you a flavor of what I’m talking about, here’s an interpretive rule from 2001, regarding THC products in schedule I.)

In my view, the answer to that question should be “no, these recent DEA letters aren’t more or less authoritative than interpretive rules.” This is because unlike proposed rules, interpretive rules are not binding. They don’t have the force of law, and they don’t require notice under 5 U.S.C. 553. Instead, interpretive rules are just DEA’s opinions on the record. They are like the spate of letters referenced above, all gussied up.

But, let’s get back to the question of DEA undertaking enforcement action, per its position in one of these letters. That’s what most people really care about!

A long time ago, I wrote a blog post called “Are CBD Food and Drinks Really Not Legal? Really?” In that post, I explored a similar question in the context of another agency, the Food and Drug Administration. The FDA took a position, outside of rulemaking, on the legality of CBD in food and beverages upon the release of the 2018 Farm Bill. I wrote in that post:

Someone could (and might) sue FDA if FDA were to take an enforcement action based solely on the fact that a food or beverage product containing Farm Bill hemp-CBD were sold in commerce. Would they win? I’m guessing not. But the question for the courts would be what level of deference to afford FDA, and the law is somewhat unclear on that today. Some commentators believe that Congress needs to clarify the issue, arising from a line of cases known as Chevron and Mead….

The Chevron and Mead cases have been around forever. Federal courts have used them for nearly 40 years and in more than 18,000 judicial opinions, to defer to an agency’s “reasonable interpretation of an ambiguous statute.” I’m sure agencies like FDA and DEA appreciate Chevron deference quite a lot. Recently, however, the doctrine has been challenged by a pair of pending cases before the U.S. Supreme Court. I don’t mean to be dramatic, but we should get a decision on those cases any day.

If the Supreme Court discards or weakens Chevron deference, the DEA letters would lose a bit of authority in my view. That said, the letters would still serve as valuable industry benchmarks, and remain more authoritative than opinions of someone like me, or anyone short of a federal court.

Things to watch for next are:

what the U.S. Supreme Court does in the above-mentioned cases; what Congress does in any 2024 Farm Bill; and what enforcement actions DEA takes, if any, on the substances it believes are controlled.

For now, I’m happy that DEA is willing to share its positions as a pen pal to industry, eschewing the stuffy rulemaking process for every minor cannabinoid (and magic mushroom spore). I also think that, notwithstanding the fact that people are e.g. selling THCA everywhere, folks should pay close attention to DEA’s reading of the law on these things. The Administration will get it right more often than not.

And even when not, being the test case is no fun at all.