The U.S. Court of Appeals for the Ninth Circuit has ruled that Delta 8 THC derived from hemp are legal under the Farm Act of 2018, in a case arising from a trademark dispute in California.
In support of the US District Court’s decision, the Court of Appeals found that the Farm Bell definition of legal cannabis “explicitly applies to ‘all’ downstream products as long as they do not exceed the 0.3 percent delta-9 THC threshold.”
The ruling is a victory for proponents of delta-8 THC, who have argued that the compound is a legal derivative of legal cannabis.
Less well-known than delta-9 THC commonly derived from marijuana plants, delta-8 is naturally present in hemp but only in trace amounts. However, producers have made products with higher concentrations of delta-8 THC by putting hemp-derived CBD through a synthetic process.
Regulators and even some hemp stakeholders have argued against Delta 8, indicating that Farm Bill never intended to use hemp in products that could be classified as psychoactive, and because Delta-8 THC is not derived from the hemp plant in a natural way.
The case in California involved e-cigarette and vaping maker AK Futures, which claimed that Boyd Street Distro, LLC, a Los Angeles-based retailer and wholesaler, was selling counterfeit products under the AK Futures cake brand.
Boyd Street responded that AK Futures products are illegal under federal law — meaning their trademarks cannot be infringed.
‘Free of ambiguity’
But the court ruled that Farm Bill removed hemp and its derivatives from the Controlled Substances Act as long as they contained no more than 0.3% delta-9 THC — making Cake’s brand products legal. The farm law is “unequivocally clear” and “forced to conclude” in the case, according to last week’s ruling.
Thus, trademark infringement can actually occur, the court ruled.
“The record on appeal convinces us that Delta 8 THC products from AK Futures are legal under the simple provision of the Farm Act and may receive trademark protection,” Opinion States.
The court noted that the farm law did not contain a separate definition of “industrial hemp” and that the provision of US law defining the term was open to even broader interpretation. It is possible that Congress did not intend to enforce a rule that hemp be produced for industrial purposes only, so the court concluded.
Strict reading
Emphasizing its stern reading of the 2018 legislation, the court said that “vague legislative history, nor speculation as to Congress’ intent” could replace legal language in the Farm Act, and that if Congress left an unintended loophole in Delta 8, it should reconsider the matter . laws.
Judge Dr. Michael Fisher in Opinion 3-0: “Regardless of the wisdom of legalizing Delta 8,” the court “would not substitute its own political ruling for a Congressional ruling.”
The decision comes in California as it is in all states across the United States grappling with delta 8, which are not regulated by the US Drug Enforcement Administration and therefore fall into a legal gray area. Some states have banned the compound entirely while others treat it under marijuana product rules.
While the appeals court’s decision may welcome Delta 8 proponents, the ruling is unlikely to cause the USPTO or other federal agencies to change their approach to cannabis, according to the Analytics From Goodwin, a California-based law firm.
The appeals court ruling, which upheld a decision by the US District Court for the Central District of California, affects producers in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. Producers in those states can now request trademark protection for their delta-8 trademarks.
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