Federal Court Rules Hemp-Derived Delta-8 THC is Lawful

Federal Court Rules Hemp-Derived Delta-8 THC is Lawful
CANNANNEW REPORT

May 25, 2022   By Daniel Shortt    Federal Law & Policy, Hemp/CBD On May 19, 2022, the United State Court of Appeals for the Ninth Circuit (9th Circuit) ruled in a landmark case regarding the legality of delta-8 tetrahydrocannabinol (delta-8 THC). The 9th Circuit held, in AK Futures LLC v. Boyd Street Distro, LLC, that the plain and unambiguous text of the 2018 Agricultural Improvement Act (2018 Farm Bill) compelled the court to the conclusion that e-cigarette and vaping products containing delta-8 THC are lawful. 21-56133 The 2018 Farm Bill Legalized Hemp Derivatives and Extracts, Which Includes Intoxicating Cannabinoids Such as Delta-8 THC In the opinion, the Court analyzed the text of the 2018 Farm Bill to determine whether hemp-derived delta-8 THC was lawful. The 2018 Farm Bill removed hemp from the Controlled Substances Act (CSA) definition of “marihuana” as well as tetrahydrocannabinols in hemp. The Court then turned to the definition of “hemp,” which in full reads as follows: The term “hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 [THC] concentration of not more than 0.3 percent on a dry weight basis. The Court analyzed the language of the 2018 Farm Bill as follows: Importantly, the only statutory metric for distinguishing [CSA] controlled marijuana from legal hemp is the delta-9 THC concentration level. In addition, the definition extends beyond just the plant to ‘all derivatives, extracts, [and] cannabinoids[.] This seemingly extends to downstream products and substances, so long as their delta-9 THC concentration does not exceed the statutory threshold[.] Certainly, a substance must be a derivative, extract, cannabinoid, or one of the other enumerated terms to fall within the 2018 Farm Bill’s statutory definition. However, these…

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