Trademark Law

US law allowing hemp products legalized potlike intoxicant delta-8 THC, 9th Circuit says

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A federal appeals court ruled last week that the 2018 law removing most restrictions on hemp legalized the ingredient delta-8 THC, which has psychoactive and intoxicating effects similar to the marijuana ingredient delta-9 THC.

The 9th U.S. Circuit Court of Appeals at San Francisco ruled May 19 in a copyright and trademark suit by AK Futures that alleged Boyd Street Distro was selling counterfeit versions of its delta-8 THC products. Boyd Street Distro had claimed that it couldn’t be sued because federal law bans possession and sale of delta-8 THC.

The San Francisco Chronicle, Forbes and Law360 have coverage of the opinion, which upheld a preliminary injunction in favor of AK Futures.

The 9th Circuit ruled that the product was legalized when the 2018 Agriculture Improvement Act lifted the ban on hemp and its products that contain less than 0.3% of delta-9 THC by dry weight.

“The act is silent with regard to delta-8 THC,” the appeals court said.

“Plain statutory text compels the conclusion that AK Futures’ products are lawful, and we see no other reason to deny a preliminary injunction,” the appeals court said in an opinion by Judge D. Michael Fisher, who was sitting by designation.

If Congress “inadvertently created a loophole legalizing vaping products containing delta-8 THC, then it is for Congress to fix its mistake,” Fisher wrote.

A lawyer for Boyd Street Distro told the San Francisco Chronicle that the company was in settlement negotiations and probably wouldn’t appeal.

Delta-THC’s psychoactive effects aren’t as strong as those associated with marijuana, Forbes reported, citing a 2020 article from the High Times.

Christian Peterson, the co-founder and chief operating officer of infused beverage manufacturer Wunder, told the High Times that delta-8 THC “produces a clear high without the anxiety often associated with D9. It can help people feel more in tune with themselves, more present in the mind and it heightens the senses.”

It also increases physical relaxation, Peterson said.

The articles noted that the U.S. Food and Drug Administration has sent letters demanding that five companies stop making health claims for products containing delta-8 THC.

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