The Fourth Circuit Weighs in on THC-O and “Synthetic” THC

In September, the Fourth Circuit Court of Appeals issued a significant decision affecting the hemp industry on the federal level. There has been an open question for some time regarding the legality of certain cannabinoids that do not naturally occur in the cannabis plant but can be created from hemp products. THC-O (tetrahydrocannabinol acetate) is an example of such a compound. State and federal criminal law both ban “synthetic THC.” What exactly counts as “synthetic” THC? I wrote a bit about this ambiguity in the law before, but Anderson v. Diamondback Investment Group, LLC, ___ F.4th ___; 2024 WL 4031401 (4th Cir. 2024), provides some of the first guidance on the issue in the age of legal hemp. Read on for the details. Synthetic Cannabinoids versus Synthetic THC. As a starting point, it is important to distinguish between “synthetic cannabinoids” and “synthetic THC.” As similar as the names are, they refer to completely different types of substances. Under federal law and state law, “synthetic cannabinoids” encompass a broad category of drugs—cannabinoid receptor type 1 agonists—which are classified by both jurisdictions as Schedule I controlled substances. See 21 U.S.C. 812(d)(1)-(2); G.S. 90-89(7). These compounds interact with the nervous system in much the same way that cannabis does, but the drugs are not derived from cannabis, nor do they naturally occur in cannabis. They are effectively designer drugs that were designed as legal (at the time) alternatives to marijuana, often sold as “incense” or “potpourri.” Synthetic cannabinoids are generally considered much more dangerous [...]