AMOHA LIVING WEBSITE ANALYSIS AND DISCLAIMER
Amoha Living LLC (“Amoha”) is an Oregon limited liability company engaged in the wholesale and retail distribution of certain hemp-derived cannabinoid products (as defined herein) throughout the United States. Specifically, Amoha’s hemp-derived cannabinoid products include, but are not limited to: (i) serums; (ii) salves; (iii) oils; (iv) topicals; and (v) vapor cartridges (collectively, the “Amoha Products”).
The Amoha Products are comprised of hemp-derived cannabinoids, including, but not limited to, cannabidiol (“CBD”), cannabigerol (“CBG”), and delta-8 tetrahydrocannabinol (“Delta-8”).
The cannabinoids found within the Amoha Products are: (i) entirely derived from lawful hemp; and (ii) contain less than 0.3% delta-9 tetrahydrocannabinol (“D9THC”) on a dry weight basis.
This analysis sets forth the current federal statutory framework surrounding the Amoha Products. Please note that the following is not to be construed as an exhaustive analysis of all federal statutes, regulations, rules, and/or agency guidance that may concern the processing and/or provision for sale of Amoha’s hemp-derived cannabinoid products, and you should consult with your own counsel prior to purchase and/or consumption of the same.
- The Controlled Substances Act and 2018 Farm Bill
The Controlled Substances Act (“CSA”) broadly prohibits the possession, manufacture, distribution, sale, and/or use of “controlled substances.” See generally 21 U.S.C. § 801 et seq.
Marijuana is currently listed as a Schedule I ‘controlled substance’ of the CSA. 21 U.S.C. 802(16); see also 21 U.S.C. § 812(c)(17). Until recently, this prohibition applied to all forms of cannabis, as the CSA previously incorporated all parts of the plant Cannabis sativa L. into the definition of “marijuana”. However, when Congress passed the Agricultural Improvement Act of 2018 (the “2018 Farm Bill”), it amended the CSA to expressly exclude “hemp” from the definition of “marihuana” (“…the term ‘marihuana’ does not include (i) hemp, as defined in section 1639o of title 7. . . ”), 21 U.S.C. § 812(c)(17), and defined “hemp” as follows:
[T]he 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.
7 U.S.C. § 1639o(1) (emp. added).
In sum, federal law clearly provides that all hemp-derived ‘derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers’ with a D9THC concentration less than 0.3% on a dry-weight basis are lawful ‘hemp’ under the 2018 Farm Bill, not unlawful ‘marihuana’, and therefore, not a ‘controlled substance’ under the federal CSA.
- The Federal Analogue Act
The Federal Analogue Act (“FAA”) is a section of the CSA that treats any chemical intended for human consumption as a Schedule I or II controlled substance if it is substantially similar — a “controlled substance analogue” as defined in the FAA — to a controlled substance listed in Schedule I or II of the CSA. See 21 U.S.C. § 813 et. seq. The FAA defines the term “controlled substance analogue” as
(A) . . . a substance – (i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II; (ii) which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II; or (iii) with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II. (B) The designation of gamma butyrolactone or any other chemical as a listed chemical pursuant to paragraph (34) or (35) does not preclude a finding pursuant to subparagraph (A) of this paragraph that the chemical is a controlled substance analogue. (C) Such term does not include— (i) a controlled substance; (ii) any substance for which there is an approved new drug application; (iii) with respect to a particular person any substance, if an exemption is in effect for investigational use, for that person, under section 355 of this title to the extent conduct with respect to such substance is pursuant to such exemption; or (iv) any substance to the extent not intended for human consumption before such an exemption takes effect with respect to that substance.
21 USC § 802(32) (emp. added). Accordingly, an unlisted chemical may be regulated as a ‘controlled substance’ under the CSA if such chemical falls within the definition of a ‘controlled substance analogue.’
Importantly, a chemical that is expressly exempt from the definition of a ‘controlled substance’ cannot be defined as a ‘controlled substance analogue’ under the FAA. As noted, the 2018 Farm Bill amended the CSA to explicitly exclude “tetrahydrocannabinols in hemp (as defined under section 1639o of title 7)” from the list of Schedule I ‘controlled substances’. 21 USC § 812(c)(c)(17). Such ‘tetrahydrocannabinols’ include both hemp-derived D9THC (below 0.3% on a dry-weight basis) and hemp-derived Delta 8. Accordingly, Delta 8 is expressly excluded from the CSA if such Delta-8 is solely derived from lawful ‘hemp’ (as defined in the 2018 Farm Bill).
- The DEA’s Interim Final Rule
On August 21, 2020, and in response to the 2018 Farm Bill’s statutory amendments to the CSA and FAA, the Drug Enforcement Agency (“DEA”) released its interim final rule (collectively, the “IFR”) confirming that tetrahydrocannabinols derived from lawful hemp were not ‘controlled substances’ under the CSA. Implementation of the Agriculture Improvement Act of 2018, 85 Fed. Reg. 163 (August 21, 2020) (emp. added).
Importantly, the DEA noted that ‘synthetic’ tetrahydrocannabinols remained a Schedule I controlled substance under the CSA:
[F]or synthetically derived tetrahydrocannabinols, the concentration of Δ9-THC is not a determining factor in whether the material is a controlled substance. All synthetically derived tetrahydrocannabinols remain Schedule I controlled substances.
Id. (emp. added).
- State Law
State law widely differs regarding the legality of CBD, CBG, and/or Delta-8 products. Indeed, state legislatures and their respective regulatory agencies either: (i) openly permit the Amoha Products under a state-specific regulatory scheme; (ii) do not regulate the Amoha Products in any manner; or (iii) have otherwise expressly prohibited the Amoha Products.
Amoha makes no representations as to the legality of the Amoha Products on a state-by-state basis. Amoha urges all prospective consumers of the Amoha Products to speak with their own counsel as to whether the Amoha Products are currently legal in the jurisdiction in which the prospective consumer resides.