A California federal appeals court has now ruled 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 a judgement from the 9th Circuit Court of Appeals, the panel of officials 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 stated 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,” stated Judge D. Michael Fisher in the court’s unanimous decision.
Marketing Hemp Products is Not a Threat
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,” stated 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.”
Trademark Dispute – The Ruling
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.