The federal legalization of hemp through the 2018 Farm Bill removed restrictions on a wide range of molecules produced by the cannabis plant — including, a new court ruling says, the psychoactive cannabinoid Delta 8 THC.
A panel of the U.S. Court of Appeals for the Ninth Circuit wrote in an opinion published last week that products containing Delta 8 THC are legal because federal law defines hemp as “any part of” the cannabis plant, including “all derivatives, extracts, [and] cannabinoids,” that contains less than 0.3 percent Delta-9 THC by weight.
“Regardless of the wisdom of legalizing Delta 8 THC products, this Court will not substitute its own policy judgment for that of Congress,” stated Judge D. Michael Fisher in the court’s unanimous decision.
The Minor Cannabinoids in the Hemp Industry
Delta 9 THC, also known as THC, is the most abundant psychoactive cannabinoid in cannabis and remains federally illegal, classified as a Schedule I controlled substance. By contrast, Delta 8 THC typically occurs in only trace amounts in the cannabis plant.
Current cultivation and manufacturing techniques, however, allow for these minor cannabinoids (Delta 8 THC, Delta 10 THC, THC-P, THC-O, etc) to be concentrated from hemp plants and refined into consumer products — including the booming Delta 8 THC industry.
Health officials and even some advocates of marijuana legalization, however, say far less is known about the health impacts or potential risks of Delta 8 THC.
Trademark Dispute – What Does the Law State?
The ruling from the 9th Circuit Court of Appeals was handed down in a case regarding a trademark dispute initiated by AK Futures, a manufacturer of vaping and e-cigarette products. In its lawsuit, the company claimed that Los Angeles-based Boyd Street Distro had sold counterfeit versions of AK’s Delta 8 THC products. Boyd Street contended, however, that AK Futures’ claim of trademark infringement was invalid because Delta 8 THC is illegal under federal law.
Last week’s ruling from the 9th Circuit upholds a lower court ruling and preliminary injunction against Boyd Street. “The record on appeal convinces us that AK Futures’ delta-8 THC products are lawful under the plain text of the Farm Act and may receive trademark protection,” the court’s opinion concludes.
Darrel Menthe, a lawyer for Boyd Street, recently expressed that he had seen no evidence that Congress had intended to legalize Delta 8 THC. If products containing the cannabinoid are deemed broadly legal, he predicted, “federal and state governments will probably get in the business of making sure it’s safe and not marketed to children.” Menthe said Boyd Street had no immediate plans to appeal the decision.
Dale Gieringer, NORML’s California director, stated that it would make more sense from a policy perspective to simply legalize delta-9 THC, which he said, “has been studied exhaustively in thousands of subjects and research protocols over the decades.”
Following the passage of the 2018 farm bill, delta-8 THC and some other minor cannabinoids entered a sort of legal gray area. Many businesses in the hemp industry insisted the products were legal, but officials in many jurisdictions disagreed.
If lawmakers inadvertently created a loophole and didn’t intend to legalize psychoactive substances such as delta-8 THC, Fisher said, “then it is for Congress to fix its mistake.”