Synthetic Cannabinoids and Federal Law
Synthetic cannabinoids, often called "designer drugs," have been a topic of much debate and confusion in recent years. Among these substances, delta-8 tetrahydrocannabinol (delta-8 THC) has become increasingly popular due to its presumed legal status and psychoactive effects similar to delta-9 THC, the primary active compound in cannabis.
However, the federal government's approach to regulating synthetic cannabinoids has led to significant confusion and ambiguity surrounding the legality of delta-8 THC and other similar substances. Synthetic cannabinoids are popular because many users believe they are safe and legal.
Most people know that cannabis is a plant. When smoked or consumed, it creates mind-altering effects, similar to intoxication from alcohol. Many people believe that weed, consumed safely, is relatively harmless to the human body and mind.
Notably, this statement is false for synthetic cannabinoids, which are not just one drug, but hundreds of different cannabinoids chemicals are manufactured and sold, and new ones with unknown health risks often become available.
The chemicals are called “cannabinoids” due to the fact they act on the same brain cell receptors as tetrahydrocannabinol (THC), which is the primary active ingredient in marijuana.
Notably, however, the hundreds of known synthetic cannabinoids and THC chemicals are different, and they can affect the brain in different and unpredictable ways compared to traditional marijuana.
Synthetic cannabinoids are often sprayed onto plant material, smoked, mixed into a liquid, and vaped in electronic nicotine delivery devices, such as e-cigarettes, or added to herbal tea or food and swallowed.
Suffice it to say that if you are accused of a federal crime related to synthetic cannabinoids, you need the assistance of an experienced federal criminal defense attorney to ensure your rights are protected and that you are not unfairly penalized due to vagueness in the law. Let's review further below.
What is the Legal Status of Synthetic Cannabinoids Under Federal Law?
The Controlled Substances Act (CSA) is the primary federal law that regulates the manufacture, distribution, and possession of controlled substances in the United States. The CSA classifies substances into five schedules based on the following:
- Their potential for abuse,
- Medical use, and
- Safety.
Schedule I substances, for example, have a high potential for abuse with no accepted medical use and a lack of accepted safety for use under medical supervision. Synthetic cannabinoids are also called the following:
- Spice,
- K2,
- AK-47,
- Scooby Snax,
- Kronic.
Synthetic cannabinoids have been classified as Schedule I substances since 2012. However, the legal status of delta-8 THC remains unclear due to its natural occurrence in small quantities in the cannabis plant and its production through the chemical conversion of CBD, a legal substance derived from hemp under the 2018 Farm Bill.
Many synthetic cannabinoids are illegal, and the federal government has banned some specific synthetic cannabinoids. Some recent federal and state laws have targeted synthetic cannabinoids and have banned general categories of ingredients rather than specific chemicals.
Thus, the makers of synthetic cannabinoids attempt to bypass these laws by creating new products with different ingredients or labeling them “not for human consumption.”
Delta-8 THC: A Legal Gray Area
The confusion surrounding the legality of delta-8 THC stems from the 2018 Farm Bill's definition of "hemp" as a cannabis plant containing no more than 0.3% delta-9 THC on a dry weight basis. This definition does not explicitly address delta-8 THC, leading to varying interpretations of its legal status.
Some argue that since delta-8 THC can be derived from hemp, it should be considered legal under the 2018 Farm Bill. Others contend that the DEA's Interim Final Rule (IFR), issued in August 2020, effectively criminalizes delta-8 THC by stating that all "synthetically derived tetrahydrocannabinols" remain Schedule I controlled substances.
The IFR's vague language and lack of clarity on what constitutes a "synthetically derived" substance have fueled ongoing debate and uncertainty around delta-8 THC's legality.
To add to the confusion, in May 2022, the Ninth Circuit Court of Appeals officially ruled that hemp-derived products containing delta-8 were not illegal under the Farm Bill.
While this ruling clarifies (at least temporarily) that delta-8 products aren't a violation of federal law, it further clouds the murky waters regarding which synthetic substances should be legal and which should be illegal.
Federal Government's Approach to Synthetic Cannabis: Complexity and Confusion
The reason there is such confusion over the legality of synthetic cannabinoids has much to do with the law's ambiguous wording. Controlled Substance Analogue Enforcement Act (CSAEA), enacted in 1986, was designed to combat the growing use of designer drugs.
Now codified in the U.S. Code Title 21 Section 813, this law generally classifies any substance "substantially similar" to a controlled substance as an illegal analogue and a Schedule I drug.
However, the Act's broad language and lack of clear guidance on what constitutes a "substantially similar" substance have led to numerous legal challenges and inconsistent court rulings.
The CSA also empowers the DEA to temporarily classify substances as Schedule I if they pose an imminent public health threat—and the DEA has used this approach to target the production and distribution of certain synthetic cannabinoids.
However, this approach has been criticized for its reactive nature, as manufacturers can easily modify the chemical structure of a synthetic cannabinoid to create a new, unregulated substance.
21 U.S. Code Part B Authority to Control; Standards and Schedules have other federal statutes that are related to 21 U.S.C. 813 treatment of controlled substance analogues, such as the following:
- 21 U.S.C. 811 - authority and criteria for classification of substances;
- 21 U.S.C. 812 - schedules of controlled substances;
- 21 U.S.C. 814 - removal of exemption of certain drugs.
What Should You Do If You Are Accused?
Because the federal government treats synthetic drugs as illegal as Schedule I substances, the stakes are pretty high if you're accused of a federal crime related to possessing, manufacturing, or distributing that substance.
Fines and prison terms are much higher for federal drug offenses than for state offenses. If you find yourself accused by the federal government of possessing, manufacturing, or distributing a synthetic cannabinoid, take immediate action to protect your rights and interests.
Seek the guidance of an experienced federal criminal defense lawyer who specializes in drug-related cases and has a deep understanding of the complexities surrounding synthetic cannabinoids. A knowledgeable attorney will know how to leverage the ambiguities in the law to protect your rights and help you avoid an unfair or unnecessary conviction.
You can contact us for a case review by phone or via the contact form. Eisner Gorin LLP has offices in Los Angeles, CA.
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