Is Delta 9 THC a controlled substance?

[mljdeckard]

Happy Saturday. (And why aren't you at the range?)

So, there's a lot of grey area and controversy lately with the emerging legalization of cannabis in general. State law v. federal law, medical v. recreational, etc.

I'm in law school with another gun guy, and he told me he occasionally uses Delta 9 THC products recreationally. (For those who may not know, the 2018 Farm Bill legalized THC products at the federal level, as long as they are derived from hemp, not marijuana, and they are below a certain concentration. A few states have tweaked the availability, and some are looking at bumping the same classification as medical cannabis, but by and large, anyone over 21 can order this stuff through the mail from Amazon and get high as a kite legally. It IS real THC, and you WILL fail a drug test if you use it.) My question is, if you use this stuff, are you a user of a controlled substance under federal law when filling out a 4473?

 

[lemaymiami]

The part about "failing a drug test" is all it takes in my view... As a licensed charter boat captain - I'm required to be on a random drug testing program (for the past 28 years now).. When I was a cop before that (22 years worth ) my agency never had a drug screening program at all until my last year there...

At any rate failing a drug test would have severe consequences for anyone licensed in the transportation industry (flight, sea, etc.). Love to hear from any attorney that's got some knowledge and working experience in this area. As for me, I make a strict point to avoid any substances that might result in a failed drug test.... How that would affect gun ownership - I have no idea...

 

[W.E.G.]

Delta 9 is full-stoner THC.

Stay away from it if you have to piss-test where a hot test for cannabis will be a problem.

All Delta 9 is illegal under federal law. So yes, you are an "unlawful user" for the purpos of the 4473 form if you are using any Delta 9.

 

[rust collector]

It may be useful to review the actual language on the current form 4473:

f. Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance? Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.

Note that criteria are unlawful user or addicted to, and note the actual description of the various substances. It appears to me that ethyl alcohol fits, as does my morning coffee. It would not surprise me at all, however, if ATF had taken yet another opportunity to expand the statutory prohibition.

18 USC section 922 (d)(3) provides that
(d)It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person, including as a juvenile—
(1)
is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2)
is a fugitive from justice;
(3)
is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));

https://www.law.cornell.edu/topn/controlled_substances_act There's a link to that Act. Knock yourselves out.

Just curious why a law student would go looking for answers on a gun board?

 

[Gordon]

My son built and sold a full on testing lab for State and DEA . YES Delta nine is now included schedule 1 by both agencies . Note States have some sort of unifying testing standards they all adhere to , pretty much , where it is legalized. Hemp "certification" for interstate shipment falls under the DEA's authority although States can and do test it for such.

 

[mljdeckard]

I'm asking here because it's finals crunch. AFTER I survive Civpro, Contracts, and Crimlaw, maybe I will do some searching and Shepardizing on it.

My quick googling has produced mixed results. The DEA seems to hold it's a controlled substance. But they're not busting anyone for it. It would seem they know exactly which doors to kick in. And it is not a gimme that DEA and BATFE are on the same page about everything.

As for failing drug tests, yes, under federal laws and agency employment requirements, you would fail. I'm not so sure the standards are the same for say city cops in a recreational state.

(Even if I were interested, I still hold a TS clearance, I'm not jumping on the ganja wagon anytime soon.)

 

[lemaymiami]

Since I was also in charge of the personnel portion of my hundred man department - I had to handle the establishing of our drug testing program (and that in itself wasn't as straightforward as you'd expect it to be since you had to establish standards, and take a very close look at just who would be doing the testing - and what their standards were... ). When we actually began doing our "random" testing I was out of the personnel and training business and back as a watch commander but you can be certain that the very first "random" tests were for those officers that were suspected users... Of course, surprise surprise, those chosen - did not pass that first round of testing - but that's another story....


One other important part of that whole process that everyone needs to remember... Anyone failing a drug test for any reason... will find themselves without the presumption of innocence that you have in a criminal procedure from that point onwards... Once you've failed a drug test, you're in the very bad position of having to prove your innocence... For those of us with captain's licenses - that means you'd be dealing with military standards (the Coast Guard...).

All of this is for Florida where I live and work (since 1971) and as noted above - different states have different standards - but the federal side of things is un-changing country wide...

 

[JohnKSa]

...the 2018 Farm Bill legalized THC products at the federal level, as long as they are derived from hemp, not marijuana, and they are below a certain concentration...

If you don't have the means to verify that the product you're buying is under the legal concentration of THC, then it wouldn't be smart to buy it. Because that's the only difference between hemp and marijuana--the only difference between legal and illegal.

But they're not busting anyone for it.

That's not relevant. There is no caveat in the gun laws to nullify the drug laws if the federal government isn't currently enforcing them.

My question is, if you use this stuff (Delta-9), are you a user of a controlled substance under federal law when filling out a 4473?

Of course.

https://www.deadiversion.usdoj.gov/schedules/orangebook/e_cs_sched.pdf

Delta-9 is listed as a schedule I drug.

Tetrahydrocannabinols--7370--I--N--THC, Delta-8 THC, Delta-9 THC, dronabinol and others

So, there's a lot of grey area and controversy lately with the emerging legalization of cannabis in general. State law v. federal law, medical v. recreational, etc.

State law does not invalidate federal law and there are no medical or recreational exceptions in federal law for schedule I drugs.

There is no "emerging legalization of cannabis" and there is no grey area.

There is a lot of controversy, but there shouldn't be. Federal law seems very clear.

 

[Arkansas Paul]

@JohnKSa summed it up pretty nicely.
Delta 9 is illegal federally.

And the hemp derived products that are legal have a percentage they have to fall below (I believe it must be under 0.3% THC).
And don't trust products purchased in gas stations or tobacco shops to contain the amount on the label.

Yes, you are a user of a controlled substance if you use Delta 9.
Nothing in the federal law is a gray area. Period.

And the fact that a law student is doing it is not surprising. I graduated recently and there was a lot of illegal drug use. Mostly marijuana, but also harder stuff as well. It was pretty prevelant.

 

[mljdeckard]

What is the DEA waiting for?

 

[JohnKSa]

That question doesn't have any legal relevance to the original question about the 4473 or to firearms possession. Keep that in mind while you read the rest of this post. The question is not relevant and the answer to it is not relevant. Therefore nothing in this post should be construed to mean or imply that the DEA's lack of enforcement activity in this specific regard has any relevance to answering the question on the 4473 or to firearms possession laws.

The answer to the question is that the federal government has not been actively enforcing personal marijuana possession and use for some time, focusing instead on trafficking, marketing and under-age sales.

Again, that has no relevance to the question about the 4473/firearms possession. The level of federal enforcement of marijuana laws, or even the complete lack of it, can not actually change the law. It does not legalize marijuana use, it only means that feds aren't currently trying to punish marijuana users. Lack of enforcement doesn't make illegal things legal.

A person who is an illegal user of a controlled substance is disqualified from firearms possession. PERIOD. The fact that the feds are not currently enforcing certain laws having to do with marijuana use does not take those laws off the books. It does not change the legality of marijuana use and that is the issue at stake. The question on the 4473 and the law that it is based on does not have a nullifying caveat based on the current level of enforcement of drug laws at the federal level.

 

[mljdeckard]

I know you understand, that the ambiguity exists. I'm not trying to say that gun owners should use all the pot they want and there will never be any consequences. But until this issue is turned one way or the other, the problem will grow and the final answer will be more difficult to adapt to. If there is one law that decriminalizes THC, and another law that says it's still a controlled substance, there is a legal reckoning on the horizon. I lost a bet when the previous administration failed to make it a campaign issue to mobilize the pot community. Sooner or later, congress will be forced to make a stand on it. I also believe this is by design.

 

[RickD427]

I know you understand, that the ambiguity exists. I'm not trying to say that gun owners should use all the pot they want and there will never be any consequences. But until this issue is turned one way or the other, the problem will grow and the final answer will be more difficult to adapt to. If there is one law that decriminalizes THC, and another law that says it's still a controlled substance, there is a legal reckoning on the horizon. I lost a bet when the previous administration failed to make it a campaign issue to mobilize the pot community. Sooner or later, congress will be forced to make a stand on it. I also believe this is by design.

There is no "ambiguity" in the law. What you describe is commonly described as "tension" in the law.

An "ambiguity" is where the effect of the law is unclear. That's not the case here. The law is crystal clear that an unlawful user of a Controlled Substance is a prohibited person. One needs to look no further than 18USC922(g)(3) to establish that fact.

That a state has elected to not make a state level crime of unlawful use (commonly referred to as "de-criminalization) only affects the state law. There is no constitutional requirement that states maintain a parallel set of laws to match federal statutes. But no state action affects the provisions of 18USC922(g)(3).

"Tension" is the term commonly used to describe the condition where there are significant attempts to change the provisions of law. That term can be properly applied to the current discussion. But unlike an "ambiguity" in the law which can produce some legal advantage to the person affected by the ambiguity, there is no corresponding legal advantage to one affected by tension in the law.

 

[JohnKSa]

I know you understand, that the ambiguity exists.

Not in this case. It is very clear in spite of really impressive efforts to make it seem ambiguous.

If there is one law that decriminalizes THC...

There are no such laws because federal law trumps state law. Until federal law decriminalizes THC, laws passed at the state level can not decriminalize THC.

Sooner or later, congress will be forced to make a stand on it.

I agree. But until that happens, the law is clear. THC use is still against federal law, it still appears in Schedule 1. Users may not legally possess or purchase firearms.

 

[mljdeckard]

Is the 2018 Farm Bill not Federal Law?

 

[JohnKSa]

There are low concentrations of opiates in poppyseed. Nobody seems to be confused by the fact that it's legal to buy and ingest poppyseed even though opiates are controlled substances.

There really isn't any ambiguity here. There just isn't.

 

[RickD427]

Is the 2018 Farm Bill not Federal Law?

Yup, the 2018 Farm Bill is federal law.

But it don't change nothing with regard to this thread.

Delta 9 THC still remains a Controlled Substance.

 

[VoodooMountain]

This is one of many weird situations when it comes to drugs.

Delta 9 is federally illegal. However, a person can grow the plant producing it if it is under Ike .3% by weight. (It is considered hemp at that point)

Basically, if you need to get a drug screening you will fail if you have used this substance recently.

 

[Charlie98]

I've never even heard of Delta 9... what's the difference, if any, between it and Delta 8? Here in Texas, which remains pretty much anti anything Cannibis... thank heavens... I've actually seen Delta 8 on the shelves. I've had to scratch my head over that one...

 

[JohnKSa]

Delta 8 and Delta 9 are explicitly listed as Schedule 1 drugs.

 

[Sistema1927]

Sometimes people are looking to see just what they can get away with. Instead, especially when it comes to the possession and use of deadly weapons, we should be looking for what is best instead.

It may be legal to possess a firearm while drunk, but why would you want to take the risk? As in all things, life is full of choices. One can choose to be a responsible gun owner, or one can choose to push the limits.

This being the legal forum, something might not be mala prohibitum, but that still doesn't make it the right thing to do.

 

[mljdeckard]

I've never even heard of Delta 9... what's the difference, if any, between it and Delta 8? Here in Texas, which remains pretty much anti anything Cannibis... thank heavens... I've actually seen Delta 8 on the shelves. I've had to scratch my head over that one...

This is the controversy. Delta 8 and Delta 9 are cannabinoids, they are full THC. You will get high and fail a drug test if you use them. It is also making the CBD market confusing, because many CBD products are now mixed with these other cannabinoids. This is why a lot of organizations (like the military) are advising people to not use CBD, a LOT of it contains THC now. The 2018 Farm Bill allows for the sale, transport, and use of THC products as long as they are derived from hemp, not marijuana, (Hemp is the male plant, marijuana is the female plant.) and they fall below a certain concentration. You can buy the stuff at a kiosk in the mall or on Amazon. (With a credit card.) But THC remains prohibited as a Schedule I drug by the DEA. What we are talking about, is the conflict created when it's still illegal, but freely sold and widely used. In its use and effect, there is no way to distinguish if you used THC from hemp or marijuana, they are the same as far as drug tests are concerned.

 

[JohnKSa]

This is the controversy. Delta 8 and Delta 9 are cannabinoids, they are full THC.

Delta 8 and Delta 9 are explicitly Schedule 1 drugs, so there is no controversy about them at all. Use and possession is illegal at the federal level--which means everywhere in the U.S. I provided the link and the line item that contains them.

THC is also a Schedule 1 drug so its use is also illegal everywhere in the U.S. The fact that some products with essentially trace amounts of THC are not illegal should not be any more confusing than the fact that you can legally buy and consume poppyseed that contains trace amounts of opiates which are controlled substances.

What we are talking about, is the conflict created when it's still illegal, but freely sold and widely used.

This does not create conflict. The lack of enforcement and the fact that you can buy them, and other similar products has nothing to do with legality. The laws are the same whether the authorities choose to enforce them or not. Until federal law is changed, it's still illegal everywhere in the U.S. The fact that the feds aren't currently actively enforcing personal possession and use of marijuana is not relevant to that.

Hemp is the male plant, marijuana is the female plant

Marijuana and Hemp are varieties of the same species. Both come in male and female plants. The way to tell Marijuana from Hemp is to measure the THC concentration.

In its use and effect, there is no way to distinguish if you used THC from hemp or marijuana, they are the same as far as drug tests are concerned.

In its use and effect it is considerably different. Using a product with hemp level concentrations of THC will not get a person high. It is true that hemp may cause positive drug test results, if the tests are sensitive enough--in the same way eating poppyseed can cause positive drug test results in some cases.