What Does Federal Appeals Court Ruling Mean for Delta-8 THC?
Delta-8 THC legal status is heatedly debated currently. Attention focused on the intoxicating cannabis agent, that’s separate from the delta-9 we know and love. Now this attention has expanded to a federal court, which may, or may not, push Congress to do something to clarify. So, what’s the deal with the recent federal appeals court ruling, and what does it mean for the future of delta-8 THC?
A new federal appeals court ruling on delta-8 THC creates even more confusion over the legality of this compound. How will Congress react to this?
Delta-8 THC Legal Federally, or not?
First and foremost, when getting into a lawsuit, it’s important to know what the lawsuit is about. Not everything is a criminal trial or involves someone getting busted for using a drug. Though court cases often spawn inflammatory headlines, the actual case doesn’t always match the hype of the headlines. If the goal is to understand the world around, then these discrepancies are wildly important.
That said, the reason this came up, is because the company AK Futures took the company Boyd Street Distro to court on trademark infringement charges, saying Boyd Street Distro was selling counterfeit versions of AK Futures’ delta-8 “Cake” vape carts.
Why does this matter to the rest of us? Because you can’t trademark an illegal product. Therefore, a federal appeals court ruling of 3-0 by The Ninth Circuit panel in San Francisco, that AK Futures can trademark the delta-8 vapes, means that it’s saying those vape carts are legal. However, this is still only a trademark case, not a case meant to set case law for the use of delta-8 THC legal products, which it most certainly did not do. The FDA regulates all consumable products, so though it might be legal to have and produce these vape carts according to the judgment, the ruling makes no decision on the legality of using them.
If this sounds weird, or even a bit silly and backward, it most certainly is! But it’s also not uncommon and highlights the contradictory nature of many laws. For example, magic mushroom spores are legal to buy and sell in most places because they don’t have psilocybin and psilocin in them, yet it’s illegal to grow them into mushrooms. Or check out the country Georgia, where cannabis is legal for use, but not to buy, sell, or grow. A similar issue to the latter shows up in tons of places, like Italy, where possession of cannabis is illegal, but use is not.
Technically, the court is saying that because the 2018 Farm Bill opened the door to hemp derivatives, that delta-8 is therefore a legal, and trademarkable product. This does go in contrast to recent actions taken by the FDA, in which letters were sent out specifically to delta-8 companies, telling them to stop illegal operations. But there are some things to consider when looking at a news story like this, because when it comes to the biggest issue regarding whether delta-8 products should be considered legal, it doesn’t touch the subject, because it wasn’t a part of the case.
What Is Not Affected by Ruling?
The ruling in no way legalizes the use of delta-8 THC on a federal level, or on any specific state level. In fact, it makes no mention of this at all, as this was not what the suit was about. Lawsuits are specific and generally geared to one particular point. The suit was only about one company’s ability to trademark a product, with the implications of what a trademark means for product legality as a corresponding aspect.
The other thing it most certainly didn’t do, is attacking the idea of synthetically made vs directly extracted. When dealing with delta-8 THC, there are some basic things that should be understood, but which get incredibly confused in the press. The term ‘hemp-derived’, should mean ‘naturally-derived’, and that’s what it’s being sold as, as a way to say that delta-8 THC can come from a direct extraction of the hemp plant.
But the reality is that delta-8 is naturally produced in such tiny amounts that no delta-8 product sold is extracted from hemp directly. Instead, they are all synthesized, making them ‘synthetically derived’.
This is an important clarification because whether or not you want to argue that delta-8 is legal under the Farm Bill, this would never account for synthetic versions. Synthetics are not a part of the Farm Bill, as the definition of ‘hemp’ only accounts for that which is derived directly from the plant. The moment synthetic processing comes in to create the compound, it’s no longer a product of hemp and does not fall under the definition of hemp. Analogs of Schedule I substances are automatically Schedule I as well under the Federal Analogue Act.
The ruling made no mention of this because it wasn’t a court case meant to examine the specifics of delta-8 production or anything that goes with that. It, therefore, wasn’t important to this specific court if either company was making a real delta-8 product or a synthetic one, and since both sides can only be selling synthetics, it wasn’t a point either would want to enter into the argument, as it’s a reason for both sides to lose.
The court ruled on the idea of naturally-occurring delta-8 THC, but went no further to verify that the products were indeed direct extractions of the hemp plant. This is partly because there’s no system of regulation set up to do so. No testing requirements exist, since apart from this ruling, it’s never been considered a trademarked, or officially legal, product before.
Does the ruling change Delta-8 THC Legal Status?
Depends on how you look at it. Delta-8 products are being sold regardless. They have been for a while now and will continue to be. In fact, this will probably go on as long as consumers want to buy the products, and recent moves through Shopify and outgoing FDA letters haven’t stopped anything, even if losing Shopify did hurt sales a little (this is speculation as almost no sales data exists). The biggest thing the delta-8 industry has to deal with is the standard weed industry, whether legal or illegal, as most prefer the real thing. But that has nothing to do with the circus going on right now.
But it does do something… The main line from federal government agencies is that delta-8 THC is illegal, hence the letters just sent out. And this ruling is a chink in the armor of that argument because it’s saying the products themselves are legal, and so is the ability to trademark them.
Much like inconsistent weed laws that allow use and not possession or sale, this judgment now does the same, saying delta-8 THC products are legal, even if you can’t consume them legally. Of course, we could then ask, ‘why would anyone want them?’, but I guess that becomes a question for another time.
How the federal government will react presents an interesting story to follow. If it does nothing, it knows that chink in the armor will grow bigger. And if it fights it outwardly and publicly, it might have a big old losing battle on its hands. Perhaps that was even an incentive for the federal appeals court ruling, in that the judges are probably aware of the difficulty of this situation for the federal government, and that their trademark case law for delta-8, could therefore stand.
For whatever reason they ruled, they made this statement, which sounds a bit daunting to me, “Regardless of the wisdom of legalizing delta-8 THC products, this court will not substitute its own policy judgment for that of Congress.” And that if there’s an issue with this, “then it is for Congress to fix its mistake.” If nothing else, it makes a statement that the court system does not feel the need to uphold Congress’ desires, which given the controversial nature of the subject, could make for some interesting cases in the future.
Future of Delta-8 THC Legal Status
Most headlines make this story seem like more than it is, but it’s not anything. Often change comes in small increments, and this ruling might represent one of those increments. The federal appeals court ruling did not legalize the consumable use of delta-8 THC, but it did rule that it’s a legal product and one that can be trademarked.
Credit: CBD Testers