A California federal appeals court ruled last week that delta-8 THC and other cannabinoids derived from hemp are legal under the 2018 Farm Bill, even if the substances have psychoactive properties.
In an opinion from the 9th Circuit Court of Appeals quoted by cannabis news site Marijuana Moment, the panel of judges wrote that products made with delta-8 THC are generally legal under federal law, which 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.
Federal statute “is silent with regard to delta-8 THC,” the court said in its 3-0 ruling.
“Regardless of the wisdom of legalizing delta-8 THC products, this Court will not substitute its own policy judgment for that of Congress,” Judge D. Michael Fisher wrote in the court’s unanimous decision.
Delta-8 THC Can Get You High
Like the related molecule delta-9 THC, which is largely responsible for the high commonly associated with smoking marijuana, delta-8 THC has psychoactive effects, although they are not as intense as pot. Christian Peterson, the co-founder, head of product development, and COO of infused beverage manufacturer WUNDER, explained delta-8 THC’s effect to High Times.
“Delta-8 THC creates more of an in-your-body sensation and physical relaxation,” Peterson said in 2020. “With less psychoactivity than delta-9, D8 produces a clear high without the anxiety often associated with D9. It can help people feel more in tune with themselves, more present in the mind, and it heightens the senses.”
Delta-8 THC can be found in small amounts in hemp and other forms of the cannabis plant, although not in the quantities as delta-9 THC. However, the cannabinoid can be refined from CBD, which is abundantly produced by many varietals of legal hemp.
The psychoactive properties of delta-8 THC have been the subject of controversy over its safety and legal status, and several states have taken steps to regulate the cannabinoid. Only last week, lawmakers in Colorado passed legislation to limit the sale of delta-8 THC products and create a task force to further study intoxicating hemp products.
Russell Coleman, ethics counsel to the U.S. Hemp Roundtable, former U.S. Attorney for the Western District of Kentucky and former senior advisor and legal counsel to Sen. Mitch McConnell, wrote in a statement from the hemp industry advocacy group that marketing intoxicating products such as delta-8 THC as hemp is not consistent with the intent of Congress.
“This kind of marketing is not simply a threat to public health and safety — particularly for kids that might purchase these products at retail — it undermines the integrity of the legal hemp industry, and ultimately threatens the livelihoods of farmers themselves,” wrote Coleman. “As a Senate staffer who was deeply involved in drafting initial U.S. hemp laws, I can attest that hemp’s legalization was only made possible by assembling a broad coalition based on the foundation of hemp being a non-intoxicating agricultural opportunity.”
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.
The 9th Circuit ruling noted that if Congress did not intend to legalize psychoactive cannabinoids such as delta-8 THC with the 2018 Farm Bill, “then it is for Congress to fix its mistake.”
Will Congress Act?
Shawn Hauser, partner at Vicente Sederberg and co-chair of the law firm’s hemp and cannabinoids practice, agrees that Congress should act to further regulate cannabinoids including delta-8 THC, and suggests that the best path to that goal is the full federal legalization of cannabis.
“Congress clearly did not intend to legalize marijuana/intoxicating consumer products through hemp legalization and tasked FDA with finished product regulation,” Hauser writes in an email. “However, the legalization of hemp allowed businesses to develop and innovate novel cannabinoids, including many beneficial consumer products –and in the FDA’s absence—this has included developing intoxicating cannabinoids through legal hemp derivatives, arguably legalizing marijuana.”
“What is glaringly obvious from this case and the continued consumer market, innovation and product development arising out of hemp legalization is that Congress needs to legalize and regulate all cannabis,” Hauser continues. “A partial, unfinished end to prohibition—the legalization of the low THC cannabis plant while maintaining prohibition on high-THC varieties—has only grown the cannabis consumer market and exacerbated the need for federal cannabis legalization that includes regulation around product manufacturing, testing, labeling, and other safety standards.”
