Just CBD Delta-8 THC Products Federally Ninth Circuit Court of appeals Federally Legal
Just CBD Delta-8 THC is in the news lately for good reason. 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 Thursday that products containing delta-8 THC are generally 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.
Just CBD Delta-8 THC Hears the “Loopholes”
The law, the court said in the 3-0 ruling, “is silent with regard to delta-8 THC.”
Delta-9 THC, often referred to simply as THC, is the most abundant psychoactive cannabinoid in marijuana 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 so-called minor cannabinoids to be concentrated from hemp plants and refined into consumer products. And delta-8 THC products have surged in popularity in recent years, especially in states where marijuana remains illegal.
Like its more famous counterpart, delta-8 THC also has psychoactive properties, although proponents say the experience is generally more subdued and has gentler side effects than delta-9 THC. Health officials and even some advocates of marijuana legalization, however, say far less are known about the health impacts or potential risks of delta-8 THC.
Ninth Circuit Ruling Delta-8 THC
The Ninth Circuit panel, for its part, noted that although delta-8 THC has “psychoactive and intoxicating effects,” it falls within federal law’s definition of hemp and is therefore legal. Just CBD Delta-8 THC is falls along the same guidelines as CBD itself, except the manufacturing is more advanced.
“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 for the three-judge panel, which also included Judges Andrew Kleinfeld and Mark Bennett. All three were appointed by Republican presidents.
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.”
Oral argument in the case took place in March.
“Regardless of the wisdom of legalizing delta-8 THC products, this Court will not substitute its own policy judgment for that of Congress,”
The Ninth Circuit ruling stems from a dispute over alleged trademark and copyright infringement that hinged on delta-8 THC’s legality. In it, AK Futures, which manufactures e-cigarettes and vaping products, claimed that a Los Angeles company, Boyd Street Distro, had been selling counterfeit versions of its branded products that contain delta-8 THC.
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Boyd Street Distro responded that the trademark and counterfeit claims were invalid on the grounds that delta-8 THC is federally illegal. But in its opinion this week, the Ninth Circuit panel disagreed, upholding a lower court’s preliminary injunction against Boyd Street Distro. Just CBD Delta-8 THC should not be limited to CBD.
“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 new opinion concludes.
For its part, Boyd Street said in the case that it purchased the products from a person who said they were an authorized dealer of the brand. The company has already sold its entire inventory of the products in question, it claimed in court, and has “no plans” to sell the brand in the future.
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Farm Bill Protects Delta-8 THC Legality
Darrel Menthe, a lawyer for Boyd Street, told the San Francisco Chronicle 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, told the Chronicle 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.”