I've been hearing lots of talk from folks claiming that DEA's inclusion of Delta-8 in a list of "other names" for "Tetrahydrocannabinols" (THC) in the April 2021 edition of the agency's so-called "Orange Book," proves that Delta-8 is in fact a Schedule I controlled substance. Others make the similar-but-not-quite-as-bold claim that DEA's references to Delta-8 in the Orange Book prove that DEA at least believes Delta-8 should be treated as a Schedule I substance. Both arguments are demonstrably wrong.
Let's start with the claim that the Orange Book's references to Delta-8 constitute proof that Delta-8 is a Schedule I substance under the CSA. This argument rests on the false assumption that DEA's Orange Book is the place to look to determine a substance's classification in the CSA's scheduling system. In fact, however, the official list appears in the Federal Register at 21 C.F.R. 1308.11-15. What makes that the official list, you ask? Well, for starters, 21 U.S.C. 812(a) commands DEA to update and publish the Schedules annually, and DEA has chosen 21 C.F.R. 1308.11-15 as the repository for the "official" list of the updated schedules. For another, unlike the Orange Book, the C.F.R. lists are products of notice-and-comment rulemaking, meaning it is far more likely that courts would treat them as having the force and effect of law under the APA. Because it is not the product of notice and comment rulemaking, the Orange Book is, at most, an example of subformal agency "guidance" intended to guide the public regarding DEA's view of the law.
But there's an even more obvious reason DEA's references to Delta-8 in the Orange Book don't prove Delta-8 is in fact a Schedule I substance: DEA has never taken scheduling action on Delta-8 itself. For a substance to be "scheduled," it must be (1) among the substances Congress itself listed in the original iteration of the schedules in section 812 of the CSA or (2) added to the schedules by DEA through one of the processes Congress provided in section 811 of the Act. Delta-8 fits neither category. Accordingly, even if DEA believes Delta-8 qualifies for Schedule I treatment, it hasn't taken the procedural steps necessary to make that belief legally enforceable.
What about the more modest argument that, at the very least, DEA's references to Delta-8 in the Orange Book prove that DEA believes Delta-8 qualifies for Schedule I treatment? That argument is wrong, too. DEA doesn't actually list Delta-8 as a Schedule I substance in the Orange Book. It merely includes Delta-8 in a list of "other names" for an actual Schedule I substance--Tetrahydrocannabinols. But that cannot be taken as proof that DEA believes Delta-8 deserves Schedule I treatment. Why not? Because DEA also lists dronabinol among the "other names" for Tetrahydrocannabinols, and dronabinol is a Schedule II or III substance (depending on dosage and form).
Before I end this post, I want to emphasize what I am and am not saying. I am saying that arguments that DEA's references to Delta-8 in the agency's Orange Book prove either that (1) Delta-8 is a Schedule I substance or (2) DEA believes Delta-8 qualifies for Schedule I treatment are mistaken. I am not saying Delta-8's legal status at the federal level is settled. Nor am I taking a position on Delta-8's legal status at the federal level. Those are different topics that I might address some other time in some other post. If you're really curious what I think on those issues, though, feel free to reach out. I'm happy to discuss.