On Thursday May 19, 2022, the U.S. Court of Appeals for the Ninth Circuit released an opinion on a recent lawsuit involving hemp and marijuana. AK Futures, which manufactures and sells e-cigarettes and vapes containing Delta 8 THC, claimed Boyd Street Distro sold counterfeit versions of their trademarked product. AK Futures then sued Boyd Street Distro for doing so. However, Boyd Street Distro said AK Futures sold a federally illegal product, Delta 8 THC. Therefore, AK Futures couldn’t claim trademark protections.
Earlier in the year, a lower court concluded that Delta 8 THC is federally legal. So AK Futures had the right to copyright protections. Boyd Street Distro appealed the decision to the Ninth Circuit, who came back with the same conclusion in a unanimous (3-0) decision.
Official Opinion
According to the three judges (D. Michael Fisher, Andrew Kleinfeld, and Mark Bennett, all of which have been appointed by Republican Presidents), the 2018 Farm Bill, which Congress passed and former President Donald Trump signed, separately defined industrial hemp and marijuana. The key distinction between hemp and marijuana is the amount of Delta 9 THC each plant contains. Products made from hemp contain 0.3% Delta 9 THC. As long as a product made from hemp continues to contain less than 0.3%, then it is federally legal.
Delta 8 naturally contains less than 0.3% because of a difference of double carbon bonds on its molecular structure. Therefore, according to the Farm Bill, Delta 8 THC is federally legal. But the counterargument from Boyd Street Distro and many lawmakers is that Congress didn’t mean to legalize a form of cannabis. Delta 8 is a psychoactive cannabinoid typically found in small amounts in the cannabis plant. So Delta 8 should still remain illegal because of its similarities to marijuana, a Schedule I substance.
Judge D. Michael Fisher argues back. While noting that Delta 8 has “psychoactive and intoxicating effects,” it remains legal under the Farm Bill’s definition. “Regardless of the wisdom of legalizing delta-8 THC products, this Court will not substitute its own policy judgment for that of Congress,” the judge wrote. If a loophole was created that lets a psychoactive substance receive a federally legal status, “then it is for Congress to fix its mistake.”
Public Response
Even though the hemp and Delta 8 industries are cheering this win, several other organizations remain opposed to Delta 8’s legal status. One such opponent is NORML’s California Director, Dale Gieringer. “The court is federally legalizing a psychoactive cannabinoid about which relatively little is known, while keeping the amply studied Delta-9 illegal,” he explained. “It makes more sense to legalize Delta-9, which has been studied exhaustively in thousands of subjects and research protocols over the decades.”
Boyd Street Distro’s lawyer, Darrel Menthe, agrees. There was no evidence that Congress intended to legalize Delta 8 or any other psychoactive cannabinoids and substances. Menthe predicted that if products containing Delta 8 remain legal, “federal and state governments will probably get in the business of making sure it’s safe and not marketed to children.”
Regardless of their opinions on Delta 8, Boyd Street Distro said they sold the supposed counterfeit products. They will not be purchasing any more from a supposed vendor. They also don’t intend to appeal the decision.
Future
This is another federal entity that has stated Delta 8 THC is legal under federal law. The DEA did the same thing regarding Delta 8 last fall. Regardless, some states have banned the production, sale, and consumption of Delta 8 within their state. Others are looking at regulation measures similar to Delta 9. The next Hemp Act in discussion and could potentially fix this supposed loophole. This would hinder hundreds of businesses and thousands of jobs should the definition of industrial hemp change. As more information becomes available, we will update you with the latest.
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