DEA Conducts Joint Raid in Texas on Vape Shops Selling High-THC Products
By Daniel Molina, Jason Adelstone
Sep 12, 2024
On August 27, 2024, nine vape shops operating in Allen, Texas were shut down after the Allen Police Department executed warrants in coordination with the Collin County Sheriff’s Office and the Federal Drug Enforcement Administration (DEA). Officers arrested five people and confiscated products that were alleged to be over the legal THC limit set by state and federal law.
The raids were conducted after months of undercover operations that involved sending minors into vape shops to buy these allegedly high-THC products. According to news reports, all products seized in the raids were found to contain THC levels ranging from 7% to 78%. However, it is not clear whether the high THC levels were due to the presence of Delta-8-THC (Delta-8) or Delta-9-THCA (THCA, the non-psychoactive precursor to Delta-9-THC), or if they exceeded the 0.3% Delta-9-THC threshold that distinguishes marijuana from hemp. An attorney for eight of the shops said that the products are “hemp-based” and legal under both Texas and U.S. federal law. In light of this, the products were likely being sold in what some argue is a gray area of hemp law. There is an ongoing legal debate about whether THCA and Delta-8 are illegal controlled substances or compliant products. The DEA has generally declined to enforce its position that such substances are controlled substances, with some exceptions.
DEA’s Position on Synthetic Forms of THC
DEA considers all synthetic forms of THC, including Delta-8 and THCA, as Schedule I controlled substances under the federal Controlled Substances Act. In 2023, DEA issued a letter stating that Delta-8 and THC-O acetate (including Delta-8-THC-O acetate and Delta-9-THC-O acetate, collectively THC-O, “do not occur naturally in the cannabis plant and can only be obtained synthetically, and therefore do not fall under the definition of hemp.” In 2024, DEA issued another letter stating that “cannabis-derived THCA does not meet the definition of hemp under the CSA because, upon conversion for identification purposes as required by Congress, it is equivalent to delta-9-THC.”
Case Law and Interpreting the 2018 Farm Bill’s Definition of Hemp
The 2023 DEA letter flies in the face of the Ninth Circuit Court of Appeals’ 2022 decision in AK Futures LLC v. Boyd Street Distro, LLC. In that case, the court found that “the only statutory metric for distinguishing controlled marijuana from legal hemp is the delta-9 THC concentration level ultimately ruling that the plain meaning of the 2018 Farm Bill supports the interpretation that the definition of hemp ‘encompasses[]delta-8 THC products so long as they contain no more than 0.3 percent delta-9 THC.’”
That same letter has also been recently disregarded by the Fourth Circuit Court of Appeals in an opinion published on September 4, 2024 in the case of Anderson v. Diamondback Investment Group LLC. In that opinion, the court ruled that DEA’s position that THC-O does not “occur naturally in the cannabis plant and can only be obtained synthetically, and therefore do[es] not fall under the definition of hemp” was not a reasonable interpretation of the 2018 Farm Bill’s unambiguous text. The court “reject[ed the] contention that the DEA’s interim final rule or letter mandates a finding that THC-O is illegal.” The 2024 Supreme Court decision in Loper Bright Enters. V. Raimondo, which reduced the deference given to interpretations of law by government agencies, was pivotal in this Fourth Circuit Decision.
To further support that the raids in Allen, TX were conducted based on test results that showed elevated levels of Delta-8 and THCA, the Allen Police Department sent notices to these vape shops (and others in Allen, TX) last May stating that products previously seized by local police were tested and that some products, including “loose leaf ‘hemp’ flower, Exclusive Hemp Farms wax, Sugar THCa wax, Toast’d pre-rolls, Alien pre-rolls, Exclusive pre-rolls, Pure Luna Rocket pre-rolls and Puro Exotics pre-rolls” were being “sold with a THC content well above the limits prescribed in Chapter 443 [of the Texas Health and Safety Code].” The high levels of THC were likely determined based on the total THC content and not just Delta-9 THC.
This formative case law is fundamental in determining the federal legality of certain hemp-derived cannabinoids. Notably, these cases do not address the legality of these products under the Federal Food, Drug, and Cosmetic Act. This case could progress to the Fifth Circuit Court of Appeals, following the Fourth and Ninth Circuits in determining whether cannabinoids such as Delta-8 and THCA qualify as hemp. If the Fifth Circuit sides with the Fourth and Ninth Circuits, the legality of these products, and others like them, may become relatively certain.
Stay Informed on Evolving Hemp Laws with Vicente LLP
Keeping up with the latest state and federal regulations on products containing hemp-derived cannabinoids can be challenging as the hemp industry continues to evolve. Our knowledgeable hemp team at Vicente LLP is always monitoring developments in hemp laws across the United States. If you have any questions about hemp-derived THC state regulations or hemp law in general, don’t hesitate to contact us today!
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