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Hemp-Derived Delta-8 THC Products Are Lawful, Says US Court

By Leo Bear-McGuinness

Published: May 23, 2022   
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A federal court in California has ruled that delta-8 THC products are lawful if they’re derived from hemp.

In an opinion piece published on Thursday, May 19, the US Court of Appeals for the Ninth Circuit in San Francisco wrote that, as the 2018 Farm Bill federally legalized hemp across the US, any hemp-produced delta-8 THC products can also be considered legal, as they fit the definition of hemp.

In the case

The ruling followed an appeals court case from the vape manufacturer AK Futures, which was in dispute with the company Boyd Street Distro for allegedly selling counterfeit versions of its delta-8 THC vape products.

Boyd Street argued that delta-8 THC is illegal under federal law and so ineligible for intellectual-property protections.

The three-judge panel sided with AK Futures and ruled that, if derived from hemp, delta-8 THC is not a controlled substance under federal law.

“The panel held that the plain and unambiguous text of the Farm Act compels the conclusion that AK Futures’ delta8 THC products are lawful,” the panel wrote.

“Observing that the relevant portion of the Farm Act removes ‘hemp’ from the definition of marijuana in the Controlled Substances Act, the panel concluded that on the available record, the delta-8 THC in AK Futures’ e-cigarette liquid appears to fit comfortably within the statutory definition of ‘hemp’ —i.e., the liquid is properly understood as a derivative, extract, or cannabinoid originating from the cannabis plant and containing ‘not more than 0.3 percent” delta-9 THC.’”

Delta-8 THC has a slightly different molecular structure to its more famous relative, delta-9 THC (commonly known as THC), which helped it initially evade many of the rules and restrictions that govern the sale THC in the US. Yet delta-8 can still induce highs comparable to its more prohibited cousin.

Naturally, then, the US has experienced a boom of delta-8 THC popularity over the two years, much to the concern of industry analysts. Given the often clandestine way the compound is produced, many cannabis chemists and industry regulators have argued that delta-8 products pose a health risk to consumers, especially minors.


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